Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 4 Ors on 19 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/50
GAHC010106502023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2716/2023
THE GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
AND ANR.
GUWAHATI- 1, REP. BY ITS GENERAL SECRETARY.
2: THE GENERAL SECRETARY
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
GUWAHATI- 1
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI- 781006.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
FINANCE (PRU) DEPTT.
DISPUR
GUWAHATI- 6.
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI- 6.
4:THE LEGAL REMEMBRANCER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GUWAHATI- 6.
5:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
Page No.# 2/50
GUWAHATI
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocates for the petitioner(s): Mr. KN Choudhury
Senior Advocate
Mr. J Patowary
Advocates for the respondent(s): Mr. TR Gogoi
Government Advocate, Assam
Mr. B Gogoi, Standing Counsel
Finance Department,
Govt. of Assam
Mr. TJ Mahanta, Senior Advocate
& Standing Counsel,
Gauhati High Court
(Principal Seat)
Mr. PP Dutta
Date of hearing & order: 19.06.2025
ORDER
Heard Mr. KN Choudhury, the learned Senior Counsel assisted by Mr. J Patowary, the learned counsel appearing on behalf of the petitioners. Mr. TR Gogoi, the learned Government Advocate, Assam, who appears on behalf of the respondent Nos.1 and 4, Mr. B Gogoi, the learned Standing Counsel, Finance Department, who appears on behalf of the respondent Nos.2 and 3 and Mr. TJ Mahanta, the learned Senior Counsel as well as the learned Standing Counsel for the Gauhati High Court (Principal Seat) assisted by Mr. PP Dutta, the learned counsel, who appears on behalf of the respondent No.5.
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2. The present writ petition has been filed challenging the speaking order No.FTC.8/2007/PT/196 dated 03.08.2022 whereby the approval sought under the proviso to Article 229 of the Constitution in respect of the Gauhati High Court (Revised Pay) Rules 2013, (Structure and Fixation) (for short, 'the Draft Rules of 2013') as amended in 2021 was declined on the ground of financial crunch of the Government. The petitioner Association further seeks for a writ in the nature of mandamus directing the State to hold discussion with the competent authority in the matter and thereafter grant approval to the Draft Rules of 2013.
PRELUDE
3. The facts leading to the filing of the writ petition are narrated herein infra:
(a). In the resolution adopted in the Chief Justice Conference held on the 13th, 14th and 15th September 2002, it was inter alia, resolved on the aspect pertaining to the representation of the High Court Employees' Federation dated 30.01.2001 addressed to the Hon'ble Chief Justice of India regarding uniformity in Pay Structure, Recruitment Rules and Nomenclature of the High Court Employees throughout India that the said aspect be taken up by the respective Chief Justices of the High Court with the State Government.
(b). Consequent thereupon, on 18.09.2003, the Hon'ble Chief Page No.# 4/50 Justice of this Court constituted a Committee comprising of Hon'ble Mr. Justice PG Agarwal (as His Lordship then was) and Hon'ble Mr. Justice Ranjan Gogoi (as His Lordship then was) to consider issues relating to uniform, better and higher pay scales for the employees of the Gauhati High Court (Principal Seat) as well as the Outlying Benches. The said Committee submitted its report in the year 2006 with several recommendations. The report was accepted by the Hon'ble Chief Justice and directed the Registry of this Court to move the Government for acceptance and implementation. The Registrar General vide letter dated 15.02.2007 forwarded the said report to all concerned in the Government.
(c). On 19.03.2007, the LR & Secretary to the Government of Assam forwarded the said report to the Finance Department. On a query being made by the Finance Department, on 31.05.2007, a request was made to the respondent No.5 i.e the Registrar General of this Court to indicate about the financial implication/budgetary provisions as would be required for the proposed revision of the pay.
The query so made was replied by the Registry of this Court vide the communication dated 03.10.2007, wherein it was mentioned that the additional amount required for implementation of the proposed pay scale per annum would be Rs.3,77,94,673/-.
(d). On 12.08.2008, the Finance Department requested the Judicial Department of the Government of Assam to place the matter Page No.# 5/50 before the Assam Pay Commission 2008 in respect of the pay scales and other benefits to the employees of the Principal Seat of this Court. Consequently, the Judicial Department vide the letter dated 25.08.2008 communicated such decision of the Finance Department to the Registrar General of this Court.
(e). In the meantime, in the year 2006, this Court initiated a suo moto proceedings being WP(C) (taken up) No. 5873/2006, inter alia on the issue regarding pay and the allowances of the officers and staff of this Court. In the said proceedings an order dated 16.09.2008 was passed whereby this Court took notice of the fact that the Finance Committee of this Court in the administrative side had taken a decision to await the decision to be taken by the State Pay Commission. Subsequently, on 30.09.2008, the Full Bench of this Court resolved to await the outcome/report of the Assam Pay Commission.
(f). The Assam Pay Commission 2008,however, taking note of the provisions of Article 229(2) of the Constitution observed that the Pay Commission set up by the State Government did not extend to dealing with pay, allowances, etc. of the employees of the High Court. It was further observed that there was no specific instructions from the Hon'ble Chief Justice to make recommendations relating to revision of pay, allowances, etc. of the employees of the High Court. In addition to that, the Pay Commission observed that there was no Page No.# 6/50 material presented justifying any disturbance to the existing parity of pay /allowances of equivalent posts in the High Court and the Secretariat.
(g). Subsequent thereto, the Assam Services (Revision of Pay) Rules, 2010 was notified vide the Notification dated 04.02.2010, wherein it was expressly made clear that the said Rules shall not apply to the officers and staff of the Gauhati High Court. Taking into account the above, a representation was submitted by the petitioner Association on 22.01.2010 before the Hon'ble Chief Justice and prayed for Constitution of a Committee comprising of Hon'ble Judges and experts to look into the matter of uniform, better and higher pay scale for officers and staff of this Court. It was further prayed that as an interim measure, the officers and staff of the Principal Seat be allowed to draw pay and allowance at par with the scales recommended by the State Government employees by the Pay Commission 2008. The said representation was placed before the Administrative Committee of this Court.
(h). The Administrative Committee in its meeting dated 10.02.2010 resolved to allow the officers and staff of the Principal Seat to draw pay and allowance on the revised pay scale at par with the equivalent post in the State Services on the basis of the Assam Service (Revisions of Pay) Rules, 2010, (for short, the ROP, Rules of 2010) as an interim measure. The Administrative Committee further Page No.# 7/50 resolved to request the Hon'ble Chief Justice to constitute a High Powered Committee for a comprehensive scrutiny and recommendations regarding disparity and anomalies generated.
(i). It is under such circumstances that the Hon'ble Chief Justice of this Court in exercise of the powers under Article 229(2) of the Constitution was pleased to approve the revision of the scale of pay of the employees of the High Court w.e.f.01.01.2000 in accordance with the scale of pay as laid down in the ROP Rules of 2010 as an interim measure.
(j). It is further taken note of that the Hon'ble Chief Justice also constituted a High Powered Committee comprising of three Hon'ble Judges of this Court vide a Notification dated 17.06.2010. The High Powered Committee after examining different aspects of the matter in its meeting dated 26.08.2010 recommended that unless an independent pay structure exclusively for the officers and staff of the Gauhati High Court at the Principal Seat and its Outlying Benches is evolved with the concurrence of the Government of the constituent States, the rationalization thereof appears to be elusive. Such resolution was laid before the Hon'ble Chief Justice.
(k). It is relevant to take note of that the petitioner Association submitted a Memorandum dated 11.01.2011 before the Administrative Committee. The Administrative Committee in its meeting dated Page No.# 8/50 23.02.2011 resolved that such representation received from the petitioner Association should be examined by a Committee comprised of Hon'ble Mr. Justice I.A. Ansari (as His Lordship then was) and Hon'ble Mr. Justice B.K. Sharma (as His Lordship then was). Accordingly, vide order No. 14 dated 25.02.2011, the said committee was constituted.
(l). On 02.08.2011 the said committee so constituted vide the Notification dated 25.02.2011 resolved to request Mr. SM Deka, the then Director of NEJOTI to furnish a report on the pay structure as may be adequate for the officers and employees of the Gauhati High Court. On such request, Mr. SM Deka, the then Director NEJOTI submitted his report on appropriate pay structure for the officers and staff of the Gauhati High Court on 10.01.2013.
(m). While these proceedings were going on, in a judicial proceedings i.e. WP(C) No.3848/2001 (Taken-Up), the learned Advocate Generals of all the constituent States suggested that exchange of views amongst the learned Advocate Generals may be helpful in resolving the issue of parity of pay scales of the employees and accordingly, vide the order dated 15.09.2011, this Court appointed the Registrar (Judicial) to facilitate and to coordinate such discussion. Consequently, the meeting of the learned Advocate Generals was held on 02.11.2011 and 03.02.2012, wherein it was decided to suggest framing of common Rules governing the Page No.# 9/50 employees as contemplated under Article 229(2) of the Constitution. Accordingly, this Court vide a judicial order dated 27.11.2012 in MC No.1322/2012 arising out of WP(C) No.3848/2001 accepted the proposals so made by the learned Advocate Generals of the constituent States to take appropriate decision by the Hon'ble Chief Justice under Article 229 of the Constitution.
(n). It is further relevant to take note of that the committee which was constituted on 25.02.2011 was reconstituted on 01.06.2012 and subsequently again reconstituted. The said Committee on 09.04.2013 considered the grievances of the petitioner Association as well as the report dated 10.01.2013 furnished by Mr. SM Deka, the then Director NEJOTI and opined that the report so submitted was confined only to Pay Upgradation and not to allowances and amenities. Accordingly, the committee resolved to defer the decision for Upgradation of allowances and amenities until further relevant information is obtained from other High Courts.
(o). The Hon'ble Chief Justice of this Court was pleased to direct framing of Draft Rules relating to revision of pay as articulated under Article 229(2) of the Constitution. The said Draft Rules upon being framed was placed before the Full Court Meeting held on 20.08.2013, wherein the Draft Rules as well as the report of the Committee was accepted and was directed to be forwarded to the State Government for concurrence. Accordingly, by the letter dated 29.08.2013, the Draft Page No.# 10/50 Rules so framed were forwarded to the Government for concurrence.
It is relevant to observe that during this period, there appears to be a shift from the very initial concept of having a Pay Rules for the employees of the Gauhati High Court i.e. the Principal Seat and Outlying Benches to having a Pay Rules duly for the Principal Seat. The apparent shift further appears to be on the ground that the petitioner Association was only following it up whereas the Association of employees of the Outlying Benches did not take any steps in that regard.
(p). The Finance Department on receipt of the said Rules made certain queries which was communicated to the Registry of this Court by a letter dated 11.11.2013 issued by the LR & Secretary Judicial Department. The queries made in the said communication dated 11.11.2013 being relevant are reproduced hereinunder:
"1. What are the existing provision applicable for the employees of the Gauhati High Court against SI.12 & 13 of the Gauhati High Court (Revised Pay) Rules, 2013, i.e, T.A./D.A and pensionary benefits respectively.
2. What are the pay scales as applicable in other High Courts indicating the difference with that of the employees of Gauhati High Court. Relevant copies of pay revision rules from other High Courts like West Bengal, Orissa, Chatisgarh, Jharkhand and Madhya Pradesh may be furnished."
(q). In response to such query, the Registry of the High Court on 04.12.2013 submitted a detailed reply which included the pay scales as applicable to 18 other High Courts and three outlying Page No.# 11/50 Benches of this Court. However, there was no response from the respondent State. Situated thus, the Hon'ble Chief Justice was pleased to convene a meeting on 10.03.2014, which was attended by the Chief Secretary to the Government of Assam as well as the Additional Chief Secretary to the Government of Assam, Finance and other Government officials. In the said meeting, the said officials agreed to expedite the process of granting approval to the Rules framed by Hon'ble Chief Justice in exercise of the powers conferred under Article 229 of the Constitution. Subsequent thereto, on 09.05.2014, a communication was issued by the Judicial Department on instruction of the Finance Department of the Government of Assam dated 09.05.2014 thereby informing that the reasons for the proposed increase of pay scales in respect to many posts is not in existent and asked the Register General of this Court to justify the need for increase in such cases. The Register General was requested to cause re-examination of the issues raised by the Finance Department in detail and to resubmit the proposal with required information or justification.
(r). The Registrar General of this Court by the letter dated 13.06.2014 submitted a detailed point-wise reply to the issues raised by the Finance Department. However, nothing further progressed which necessitated the petitioner Association to again request the Hon'ble Chief Justice to intervene in the matter and consequently Page No.# 12/50 during the month of October 2014, the Hon'ble Chief Justice had a meeting with the Principal Secretary Finance Department. Subsequent thereto, a meeting was held on 07.11.2014 between the Registrar General and the Principal Secretary Finance Department. In the said meeting, the representative of the State Government, inter alia contended that the substantial mid-term enhancement of pay and allowances of non-judicial officers and staff of the High Court may upset the delicate balance with their counterparts in the Secretariat and other Government Departments. On the other hand, the Registrar General of this Court apprised in the meeting that the pay scales in the outlying benches are higher than the pay scale of officers and staff of the Principal Seat. On the ground that the said information was not furnished by the Judicial Department, it was decided to request the Judicial Department to furnish the information relating to pay scale of the Outlying Benches and also to consider the idea of enhancement of the grade pay in selected deserving cases only.
(s). Subsequent thereto on 12.12.2014, the Registrar General of this Court in reply to the minutes of the Finance Department furnished certain information to the Judicial Department wherein it was clearly highlighted the views taken by the Finance Department in the meeting dated 07.11.2014 were not sustainable and tantamounted to questioning the authority of the Hon'ble Chief Justice to frame Rules towards the conditions of service of officers and servants of this Court Page No.# 13/50 as provided under Article 229 of the Constitution. Subsequent to the said communication dated 12.12.2014, the Government of Assam did not take any steps towards granting of approval by the Governor to the Rules of 2013. However, as nothing was done, the petitioner Association being aggrieved filed a writ petition before this Court which was registered and numbered as WP(C) No.1724/2015. Pursuant to the filing of the said writ petition, a meeting was held between the Hon'ble Chief Minister, Assam and the Hon'ble Chief Justice (Acting) of this Court on 25.06.2015 to discuss various issues relating to the judiciary. Proposal for providing better and higher pay to the officers and staff of the Gauhati High Court (Principal Seat) was discussed as an additional item. Following the said meeting, a series of meetings of the High Powered Committee took place.
(t). Initially an affidavit was filed on 12.10.2015 before this Court in WP(C) No.1724/2015. The justification given in the said affidavit was, however, not accepted by this Court, for which, the respondent No. 2 filed a detailed affidavit on 05.11.2015, referring to the minutes of the High Powered Committee held on 11.09.2015, wherein it was decided that the Finance Department would come up with an alternative option having regard to the special characteristics of working of the employees of the Gauhati High Court (Principal Seat).
(u). It is relevant to take note of that on 04.04.2016, when the said writ petition being WP(C)No.1724/2015 was taken up for Page No.# 14/50 admission, this Court passed an order providing as an interim measure for payment of additional Principal Seat Pay (for short, 'the PSP') to the officers and staff of the Gauhati High Court (Principal Seat) including such PSP while calculating the dearness allowance, house rent allowances, pension etc. Paragraphs 29 and 30 of the said order being relevant are reproduced hereinunder:
"29. Having regard to the discussions made above, as an interim measure, respondent Nos.1, 2 and 3 are directed to give effect to the proposal of the Finance Department, Govt. of Assam, with regard to payment of additional 'Principal Seat Pay' (PSP) to the officers and staff of the Gauhati High Court (Principal Seat) including such PSP while calculating Dearness Allowance, House Rent Allowance, pension, etc. It shall be given effect to from 01.01.2006 for the purpose of notional benefits and from 01.04.2008 for the purpose of calculating arrear pay. It is clarified that the above payment would be in addition to such benefits which the officers and staff of the Gauhati High Court (Principal Seat) may be entitled as granted to the State Government employees under the 2010 Rules. Let Principal Seat Pay be paid as part of the current salary with effect from 01.07.2016 and the arrears from 01.04.2008 to 30.06.2016 shall be paid during the month of July, 2016.
30. In the meanwhile, Registrar General, Gauhati High Court, would continue the deliberations through the High Powered Committee constituted following the meeting between Hon'ble the Chief Justice (Acting) and Hon'ble Chief Minister, Assam, on 25.06.2015. Let the next meeting of the High Powered Committee be convened in the first week of May, 2016, whereafter deliberations may be continued and outcome of such deliberations shall be placed before the Court on the next date. "
(v). It is further seen from the records that on the basis of the order dated 04.04.2016, a Notification dated 16.08.2016 was issued by the Judicial Department of the Government of Assam, thereby Page No.# 15/50 notifying that the Governor of Assam was pleased to approve payment of PSP to the officers and staff of the Gauhati High Court (Principal Seat) as an interim measure in addition to the existing pay and allowances to be given notional effect from 01.01.2006 and arrears w.e.f. 01.04.2008.
(w). On 09.12.2016, an additional affidavit was filed by the respondent No.2 herein in the said writ proceedings to bring on record the subsequent developments which took place during the pendency of the case, more particularly, the minutes of the meeting of the High Powered Committee held on 04.11.2016 and the letter dated 23.11.2016. Subsequent thereto, the said writ petition being WP(C)No.1724/2015 was disposed of by the judgment and order dated 06.04.2017. While disposing of the said writ petition, the Coordinate Bench of this Court passed the following directions, which are at paragraphs 20, 21 and 22 of the judgment and order dated 06.04.2017 and the same being relevant are reproduced hereinunder:
"20. Court has also noticed that there is a broad consensus at the Bar that the 2013 Rules, as framed, may have to be revisited in view of the subsequent developments as notice above. Accordingly and in the light of the above, respondent No. 4 i.e., Registrar General, Gauhati High Court is directed to place the matter before Hon'ble the Chief Justice at an early date so that necessary modification may be made to the 2013 Rules or altogether a new set of Rules may be framed having regard to the grant of Principal Seat Pay to the officers and staff of the Gauhati High Court (Principal Seat) and taking into consideration the revised pay scales provided to the State Government employees as per recommendations of the 7th Assam Pay and Productivity Commission. Once the Page No.# 16/50 said exercise is completed at the level of the Gauhati High Court, the same may be forwarded to the State Government which in turn shall take appropriate decision thereon within a period of four months from the date of receipt of fresh proposal from the Gauhati High Court having regard to the mandate of Article 229 of the Constitution of India, as explained above.
21. Till finalization of the Rules as above, benefits extended to the State Government employees by the Government of Assam in terms of the 7th Assam Pay and Productivity Commission shall also be extended to the officers and staff of the Gauhati High Court (Principal Seat).
Needless to say, the Principal Seat Pay granted to the officers and staff would be in addition to the above.
22. Before parting with the record, Court hopes and trusts that the State Government will rise to the occasion and do the needful so that the officers and staff of the Gauhati High Court (Principal Seat) are given their due and that they do not feel compelled to approach the Court again."
(x). The petitioner Association who were the writ petitioners in WP(C)No.1724/2015, thereafter filed an appeal being WA No.93/2018 before the learned Division Bench of this Court against the judgment and order dated 06.04.2017 passed in WP(C)No.1724/2015 primarily on the ground that the directions so issued by the learned Coordinate Bench of this Court in its judgment and order dated 06.04.2017 did not provide adequate relief. The said appeal was disposed of by an order dated 30.03.2021, whereby the judgment and order passed by Coordinate Bench of this Court dated 06.04.2017 was upheld and directions were issued that the exercise as contemplated in the judgment and order dated 06.04.2017 be carried out by the Registrar General as expeditiously as possible. It was further observed that Page No.# 17/50 once the Rules are forwarded to the Judicial Department for necessary approval, steps in the light of Article 229 of the Constitution of India be initiated expeditiously and a decision in the matter of approval of the Rules be communicated to the High Court within 60 days from the date of receipt of the Rules.
(y). Inspite of the said directions, the Respondent State did not take any steps in that regard, which resulted in filing of Contempt Proceedings being Cont.Cas(C)No.158/2022, alleging willful and deliberate violation of the order dated 30.03.2021. Upon receipt of the said notice, in the contempt proceedings, the Government in the Finance (Pay Research Unit), Department passed an speaking order on 03.08.2022 whereby approval sought under the proviso to Article 229(2) of the Constitution in respect of the Draft Rules of 2013 was declined on the ground of financial crunch of the Government, for which, the contempt case was closed vide the order dated 25.08.2022 with liberty to assail the speaking order dated 03.08.2022.
(z). The petitioner Association being aggrieved challenged the order dated 25.08.2022 in SLP (C) Diary No.41620/2022 before the Supreme Court of India. Vide an order dated 27.02.2023, the said Special Leave Petition was disposed of thereby granting liberty to the petitioner Association to initiate appropriate proceedings and upon such initiation, the Supreme Court requested this Court to decide the matter expeditiously, preferably within six months from the date of Page No.# 18/50 filing of the same. It is under such circumstances, the present petition has been filed, seeking the relief as above-mentioned.
STAND OF THE STATE OF ASSAM AND THE JUSTIFICATION TO THE ORDER DATED 03.08.2022
4. It is relevant to take note of that upon filing of the instant writ petition, notice was issued vide order dated 19.05.2023. The record reveals that respondent No.3 had filed an affidavit-in- opposition on 29.09.2023. In the said affidavit-in-opposition, it was stated that the officers and staff of the Principal Seat of the Gauhati High Court draw their salary and allowances from the Consolidated Fund of the State. The pay and allowances of the officers and staff of the Principal Seat of the Gauhati High Court vary from State to State keeping in mind the resource availability of the concerned State.
5. It was further mentioned that the Outlying Benches of the Gauhati High Court are the Itanagar Bench, Aizawl Bench and the Kohima Bench respectively. The officers and staff of the Outlying Benches at Naharlagun as well as the officers and staff of the Government of Arunachal Pradesh draw pay and allowances as per the Central Pay Scale, while the officers and staff of the other Outlying benches as well as the officers and staff of the State Government of Nagaland and Mizoram draw pay and allowances as per the ROP Rules of the concerned State depending upon the resource position of their respective State.
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6. It was further mentioned that the respective State Governments have adopted either the 7th Central Pay Commission or their own ROP, but what was pertinent that the employees of the State of Arunachal Pradesh also draw higher pay than drawn by officers and employees of the Government of Assam.
7. It was also mentioned that as the officers and staff of the Gauhati High Court have already drawn pay and allowances as per the ROP Rules of 2010 plus PSP with effect from 01.01.2006 to 31.03.2016 and are presently drawing revised pay as per ROP Rules 2017 plus PSP which is more than the pay of the officers and employees of the State Government who draw pay as per the ROP Rules of 2017 and in view of the financial crunches, the Government of Assam in the Finance (PRU) Department with the approval of the Cabinet disposed of the proposal of the Draft Rules of 2013 with a decision to continue drawal of pay and allowances as per the ROP Rules 2010 w.e.f. 01.01.2006 to 31.03.2016 and as per the ROP, Rules 2017 w.e.f. 01.04.2016 onwards with additional PSP already allowed instead of adopting the Draft Rules of 2013 by the speaking order.
8. It is relevant to take note of that from the stand of the Respondent-State of Assam as could be discerned from the affidavit- in-opposition is that the approval to the Draft Rules were declined for two reasons. First, on account of financial crunch of the State of Assam and secondly, on the ground that the employees of the Gauhati Page No.# 20/50 High Court (Principal Seat) are already enjoying the benefit of the PSP, which is in addition to what employees of the State Government are enjoying as per the ROP Rules of 2017.
AFFIDAVIT-IN-REPLY FILED BY THE PETITIONER ASSOCIATION
9. An affidavit-in-reply was filed on 18.06.2024, wherein the petitioner Association apart from reiterating what has been stated in the writ petition stated that the Government in the Finance Department had never considered the matter in the proper perspective, namely, the disparity in pay existing between the Principal Seat and the Outlying Benches of the Gauhati High Court, although employees, whether in the Principal Seat or the Outlying Benches, perform similar work and are governed by common service conditions framed under the authority of the Hon'ble Chief Justice.
10. It was further stated that the respondent authorities have completely ignored the fact that no exercise for determination of appropriate pay for employees of the Gauhati High Court (Principal Seat) has ever been carried out as had been done by the State Government and the Central Government regularly for its officers and staff and unfortunately, the pay scales determined by the State Government and the Central Government for its own employees are simply borrowed or imposed upon the officers and staff of the Gauhati High Court.
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11. It was further mentioned that in terms with Article 229 of the Constitution, the Hon'ble Chief Justice can consider the grievances of the officers and staff and revise the pay and allowances of the officers and staff of the Gauhati High Court at regular intervals and such power is akin to the power of the State Government under Article 309 which is adhered to usually once every 10 years for revision of the pay of its employees. It was stated that the quantum and burden of work is the highest in the Principal Seat of the Gauhati High Court, in view of the ever increasing litigation coupled with the fact that it is the Principal Seat, which controls and coordinates with all Outlying Benches, coordinates with the Government of India, State Governments, Hon'ble Supreme Court and other High Courts, Statutory bodies, etc.
12. It was further stated that the stand so taken by the Finance Department for rejecting the Draft Rules of 2013 by solely relying upon the pay scales applicable for the respective State Government employees and the State Government which is funding the expenditure, if accepted, then in that event the same would have the potential of nullifying the prescription envisaged under Article 229 of the Constitution insofar as the determination of pay and allowances of the employees of the Gauhati High Court by the Hon'ble Chief Justice is concerned. It was stated that this would result in an incongruous situation, where neither the employees of the High Court would be Page No.# 22/50 covered by the terms of reference of any Pay Commission nor any Pay Rules framed by the Hon'ble Chief Justice would be acceptable to the Government and thereby paving the way for Executive to be the determiner of the service conditions and pay of the employees of the High Court. It was further stated that the special nature of the work done by the employees of the Gauhati High Court can only be measured and appreciated by the Hon'ble Chief Justice and His Colleagues and not the State Government.
ADDITIONAL AFFIDAVIT BY THE PETITIONER ASSOCIATION
13. It is further seen that on 24.04.2025, an additional affidavit was filed by the petitioner Association, whereby the Revised Draft Rules of 2013 which was forwarded pursuant to the order dated 30.03.2021 in WA No.93/2018 was brought on record.
SUBMISSIONS MADE ON BEHALF OF THE PARTIES
14. Mr. KN Choudhury, the learned Senior Counsel appearing on behalf of the petitioner Association submitted that it is completely inconceivable as to how the respondent State, more particularly, in the Finance Department is addressing the issue, taking note of Article 229 of the Constitution. By referring to Article 229 of the Constitution, the learned Senior counsel submitted that the conditions of service of officers and servants of a High Court shall be such as may be prescribed by the Rules made by the Chief Justice of the Court or by Page No.# 23/50 some other Judges or Officer of the Court authorized by the Chief Justice to make Rules for the purpose. He further stated that the proviso added to Article 229(2) stipulates that insofar as when the Rules relates to salaries, allowances, leave or pension, it shall require the approval of the Governor of the State. The learned Senior Counsel, therefore, submitted that when a high authority like the Chief Justice of a High Court makes the Rules, the Government, in normal circumstances ought to approve the said Rules. The learned Senior Counsel submitted that if the Rules are not approved for good reasons, it amounts to interference with the independence of the Judiciary which is the basic structure of the Constitution.
15. By referring to the ROP Rules of 2010 as well as the ROP Rules of 2017, the learned Senior Counsel submitted that those ROP Rules of 2010 and ROP Rules of 2017 are not applicable to the officers and staff of the Gauhati High Court in view of the constitutional mandate contained in Article 229(2) of the Constitution and this very aspect can be seen from the very Rules itself. The learned Senior Counsel further submitted that what the State is doing is as a stop-gap arrangement for the last more than two decades have allowed the ROP Rules 2010 as well as the ROP Rules 2017 to the officers and staff of the Gauhati High Court (Principal Seat). The learned Senior Counsel submitted that financial crunch cannot be a ground for the State not to accept the Rules so sent for approval of the Governor as Page No.# 24/50 has been held by the Supreme Court in two decisions which are in the case of all India Judges' Association and others Vs. Union of India and Others, reported in (1993) 4 SCC 288 as well as in the case of the High Court Employees Welfare Association, Calcutta and others Vs. the State of West Bengal and others reported in (2004) 1 SCC 334. He submitted that the impugned order by which the approval to the revised Draft Rules of 2013 was declined vide the order dated 03.08.2022 is contrary to the law laid down by the Supreme Court, wherein it has been categorically held that financial crunch cannot be a ground for not granting an approval to the Rules made by the Chief Justice of a High Court in exercise of the powers under Article 229(2) of the Constitution. He further referred to a recent order passed by the Supreme Court in the case of the State Of Himachal Pradesh & Anr. Vs. Himachal Pradesh High Court Non Gazetted Employees/Official Employees Association & Anr. dated 14.02.2025 in SLP(C)No.11322/2023 whereby the Supreme Court upheld the order passed by the High Court of Himachal Pradesh, whereby there was a direction to the Chief Justice of the High Court to constitute a Committee consisting of at least two Judges of the said High Court along with various officials from the State as well as two representatives of the Association, who filed the writ petition. He, therefore, submitted that in both the judgments i.e. in the case of the High Court Employees Welfare Association, Calcutta (supra), as well as Page No.# 25/50 in the Himachal Pradesh High Court, Non-Gazetted Employees Official Employees Association (supra), the Supreme Court has been very clear as to how the situation is required to be resolved. He, therefore, submitted that the second relief so sought for in the petition is in that respect.
16. Per contra, Mr. B. Gogoi, the learned counsel appearing on behalf of the Finance Department of the Government of Assam relied on the affidavit-in-opposition filed by the Finance Department and supported the speaking order dated 03.08.2022 on the ground that if the payment is to be given as per the Revised Draft Rules of 2013, the State of Assam would have difficulty to make payment on account of the resources of the State Government. He further submitted that the employees of the Principal Seat of the Gauhati High Court are already getting higher pay than the counterparts working in the State Government on account of the PSP and further, the question of equating the salary of the employees working in the Principal Seat of the Gauhati High Court with the Outlying Benches of the Gauhati High Court does not arise, taking into account that their salary is being fixed as per the resources available with the concerned State. In this context, he referred to the Judgment of the Supreme Court in the case of High Court Employees Welfare Association, Calcutta and Others Vs. the State of West Bengal and others reported in (2007) 3 SCC 637 and submitted that this judgment was in continuation to the Page No.# 26/50 Judgment in the case of Court Employees Welfare Association, Calcutta and others (supra). The judgment reported in (2007) 3 SCC 637 is hereinafter referred to as the High Court Employees Welfare Association, Calcutta(2) (Supra) for the sake of convenience.
POINTS FOR CONSIDERATION
(i) Whether the order dated 03.08.2022 by which the approval sought for was declined under the proviso to Article 229(2) of the Constitution to the Revised Draft Rules, 2013 as amended in 2021 requires any interference?
(ii) What relief/reliefs the petitioners are entitled to?
ANALYSIS AND DETERMINATION First Point for consideration:-
17. The narration made to the facts at paragraph No.3 herein above would show that the impugned order dated 03.08.2022 was passed pursuant to the directions passed by the learned Division Bench of this Court dated 30.03.2021 in Writ Appeal No.93/2018 for consideration on the aspect of approval of the Draft Rules of 2013. It would be seen from the affidavit-in-opposition filed by the Finance Department of the Government of Assam as well as the submission so made by the learned counsel appearing on behalf of the Finance Department that the reasons for declining the approval is on the grounds that if the approval is given, there would be manifold Page No.# 27/50 increase in the total additional financial outlay and the financial crunch of the State of Assam did not permit such additional expenditure. The second reason so assigned is that the Cabinet in its meeting dated 05.07.2022 had expressed the feeling that the provision of PSP had created disparity between the officers and staff of the Gauhati High Court vis-a-vis the other employees and staff of the State Government who also have been working hard and tirelessly. Apart from that, it further transpires from the stand taken in the affidavit on the aspect pertaining to the different pay scales in the Principal Seat and Outlying Benches of the Gauhati High Court is on account of adoption of different pay scales by the State Governments of the Outlying Benches, vis-à-vis, the pay scale of the State of Assam, wherein the Principal Seat is situated.
18. The question, therefore, arises as to whether the reasons so assigned can be said to be justifiable reasons for declining the approval in terms with the proviso to Article 229 of the Constitution.
19. The present case comes within the ambit of Clause (2) of Article 229 of the Constitution, which being relevant, is reproduced herein under:-
"(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 Page No.# 28/50 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."
20. A perusal of the above provision of the Constitution would show that by virtue of Article 229 of the Constitution of India, the Chief Justice of the High Court has been empowered to prescribe by Rules the conditions of service of officers and servants of the High Court. However, such Rules shall be subject to:(i) the provision of any law made by the Legislature of the State; and (ii) the approval of the Governor of the State so far as it relates to salary, allowances, leave or pension. Therefore, the mandate of Article 229(2) of the Constitution makes it clear that it is only the Chief Justice of the High Court, who would regulate the conditions of service of the employees of the High Court including on the aspect pertaining to salary, allowances, leave or pension. The natural corollary, therefore, is that both the Central Government as well as the State Government would not have the power to regulate the conditions of service of the employees of the High Court.
21. At this stage, it is relevant to take note of that Article 229(2) of the Constitution is similarly worded to Article 146(2) of the Constitution. The difference being that Article 146 of the Constitution is in relation to officers and servants of the Supreme Court for which the power has been conferred upon the Chief Justice of India to make Page No.# 29/50 Rules relating to conditions of service of officers and servants of the Supreme Court and the said Rules when it relates to salaries, allowances, leave or pension would require the approval of the President. The question, however, arises as to why the Constitution has specifically empowered with the Chief Justice of India insofar as, the Supreme Court is concerned and the Chief Justices of the High Courts insofar as, the High Courts are concerned to make Rules prescribing the conditions of service of officers and servants of the Supreme Court or the High Courts as the case may be which would also include Rules relating to salaries, allowances, leave or pension etc. The Supreme Court in the case of the State of Rajasthan and Others vs. Ramesh Chandra Mundra and Others , reported in (2020) 20 SCC 163 had observed that the correct Constitutional approach in respect to the understanding of Article 229(2) and Article 146(2) is one of comity between different institutions working under the Constitution. The emphasis is not on supremacy of one institution or demarcating the boundary of the other. It is about ensuring institutional integrity of one while respecting the functional domain of the other. The Supreme Court further observed that these provisions are meant to facilitate a dialogue of governance between high Constitutional Functionaries. The Supreme Court further, in the said judgment, took into consideration that the independence of judiciary is a part of the basic structure of the Constitution. The Supreme Court Page No.# 30/50 observed that the Constitution had insulated the judiciary from outside influences both from the Legislature and the Executive. Not only the Supreme Court, the High Courts, but also the Subordinate Courts have been insulated. The Supreme Court in the said judgment observed that "An integral part of "the Independence of Judiciary" as a constitutional value is the institutional independence, i.e. the aspect concerning the financial freedom or autonomy which the Judiciary must possess and enjoy". In this regard, this Court finds it relevant to take note of paragraph Nos.22 & 27 of the said judgment which is reproduced herein under:-
"22. That independence of judiciary is part of the basic structure of the Constitution is now well entrenched. The Constitution has insulated the judiciary from outside influences both by the executive and legislature. Articles 223 to 234 in Chapter VI in Part VI of the Constitution dealing with the courts below the High Courts also show that the Constitution-makers were equally keen to insulate even subordinate judiciary. Independence of judiciary takes within its sweep independence of the individual Judges in relation to their appointments, tenure, payment of salaries and also non-removal except by way of impeachment. An integral part of "Independence of judiciary", as a constitutional value is the "Institutional Independence" i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. This effective involvement of the judicial branch in budgeting, staff and infrastructure has also been recognised by the international community.
27. Adequate budgeting so as to meet the judiciary's work demands, so as to ensure proper infrastructure and facilities is integral to judicial functioning. In that sense, it is an aspect of judicial independence. That independence of judiciary is part of the basic structure of the Constitution is by now well entrenched. An integral part of Page No.# 31/50 "independence of judiciary", as a constitutional value is the "institutional independence"
i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy."
22. Therefore, from the above, it is clear that independence of the judiciary, which is one of the basic feature of the Constitution, can be attained if there is an institutional independence which would include the financial freedom or autonomy which the judiciary must possess and enjoy. The provisions of Article 202(3), 204(2), as well as 229(3) of the Constitution are pointers towards the financial freedom or autonomy guaranteed by the Constitution of India lending support to the independence of the judiciary which is a basic feature of the Constitution.
23. Before further dealing with the Article 229(2) of the Constitution, this Court finds it relevant to take note of some of the Articles of the Constitution which would show the uniqueness of the Gauhati High Court. Chapter III of Part VI of the Constitution specifically refers to the State Legislature. In terms with Article 168 of the Constitution, for every State, there shall be a Legislature which shall consist of the Governor and one or two Houses of the Legislature of the State. The Constitution does not perceive that there shall be one Legislature for two or more States. On the other hand, Chapter V of Part VI of the Constitution deals with the High Courts in the States. Though Article 214 of the Constitution stipulates that there shall be a High Court for Page No.# 32/50 each State, but a reading of Article 231 of the Constitution would show that notwithstanding anything contained in the preceding provisions of Chapter V of Part VI of the Constitution, the Parliament by law can establish a common High Court for two or more States and a Union Territory. This aspect is relevant taking into consideration that vide the Assam High Court Order, 1948, the High Court of Assam was established on 05.04.1948 thereby empowering the High Court of Assam to exercise jurisdiction in respect to the territories which were included within the Province of Assam. Subsequently, in the year 1962, the Parliament by an Act, namely, the State of Nagaland Act, 1962 which led to the formation of the State of Nagaland by law ordained that there shall be a common High Court called "the High Court of Assam and Nagaland". Subsequent thereto, in terms with the North-Eastern Areas (Reorganisation) Act, 1971, the High Court of Assam and Nagaland ceased to function and a common High Court for the States of Assam, Nagaland, Meghalaya, Manipur and Tripura was ordained to be known as the Gauhati High Court. Furthermore, in terms with the State of Arunachal Pradesh Act, 1986, and the State of Mizoram Act, 1986, a common High Court called the Gauhati High Court was established, which was the common High Court for the States of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh. It is also relevant to take note of that vide amendments made to the North-Eastern Areas (Reorganisation) Act, Page No.# 33/50 1971 by the North Eastern Areas (Reorganisation) and Other Related Laws (Amendment) Act, 2012, separate High Courts for the States of Meghalaya, Manipur, Tripura were established, and at present, the Gauhati High Court is the High Court of the States of Assam, Nagaland, Mizoram and Arunachal Pradesh.
24. The Chief Justice of the Gauhati High Court, therefore, is empowered under Article 229 of the Constitution to prescribe the conditions of service of the officers and servants of the Gauhati High Court by Rules made by the Chief Justice of the Gauhati High Court which would also include conditions of service relating to salaries, allowances, leave or pension. It is apposite herein to observe that under the authority of the Chief Justice, the Gauhati High Court (Appointment, Conditions of Service and Conduct) Rules, 1967 (for short, 'the Rules of 1967') were made which has been amended from time to time. The Rules of 1967 deal with the service conditions of the officers and servants of the Gauhati High Court which includes the Principal Seat at Guwahati as well as the Outlying Permanent Benches at Naharlagun, Aizawl and Kohima. It is, however, relevant to take note of that the Rules of 1967 do not deal with the salaries, allowances, leave or pension of the officers and servants of the Gauhati High Court. It is in that context, the Draft Rules of 2013 were made. The chronology of the events as narrated in Paragraph No.3 of the instant order would clearly show that initiation was taken till steps Page No.# 34/50 were taken for drafting of the Pay Rules with the perspective of providing a uniform, better and higher pay scale for the employees of the Gauhati High Court which includes the Principal Seat and the Outlying Benches.
25. This Court at this stage finds it relevant to take note of the judgment of the Supreme Court in the case of State of Maharashtra vs. Association of Court Stenos, P.A., P.S, and Another , reported in (2002) 2 SCC 141. The Supreme Court in the said judgment opined that a plain reading of Article 229(2) of the Constitution would show that the Chief Justice is the sole authority for fixing the salaries etc. of the employees of the High Court subject to the Rules made under the said Article, i.e. such Rules shall be subject to the provision of any law made by the Legislature of the State and in view of the proviso to Sub-Article (2) of Article 229 of the Constitution, the Rule relating to salaries, allowances, leave or pension of the employees of the High Court would require the approval of the Governor before the same can be enforced. The Supreme Court further observed that this approval of the Governor which is a condition precedent to the validity of the Rules made by the Chief Justice in so far as it relates to fixation of salaries, allowances, leave or pension is not merely on his discretion but being advised by the Government. It was categorically observed that apart from any power conferred by the Rules framed under Article 229 of the Constitution, the Government cannot fix the Page No.# 35/50 salary or authorize any particular pay scale of an employee of the High Court. The Supreme Court also observed that notwithstanding the Constitutional provision that the Rules framed by the Chief Justice of the High Court so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor, but it is always expected that when the Chief Justice of a High Court makes Rules, 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. Paragraph No.5 of the said judgment being pertinent to the instant dispute is reproduced hereinunder:-
"5. Under the Constitution of India, appointment of officers and servants of a High Court is required to be made by the Chief Justice of the High Court or such other Judge or officer of the Court as the Chief Justice directs. The conditions of service of such officers and servants of the High Court could be governed by a set of rules made by the Chief Justice of the High Court and even the salaries and allowances, leave or pension of such officers could be determined by a set of rules to be framed by the Chief Justice, but so far as it relates to salary and allowances etc. it requires approval of the Governor of the State. This is apparent from Article 229 of the Constitution. On a plain reading of Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the salaries etc. of the employees of the High Court, subject to the Rules made under the said article. Needless to mention, rules made by the Chief Justice will be subject to the provisions of any law made by the legislature of the State. In view of proviso to sub- article (2) of Article 229, any rule relating to the salaries, allowances, leave or pension of the employees of the High Court would require the approval of the Governor, before the same can be enforced. The approval of the Governor, therefore, is a condition Page No.# 36/50 precedent to the validity of the rules made by the Chief Justice and the so-called approval of the Governor is not on his discretion, but being advised by the Government. It would, therefore, be logical to hold that apart from any power conferred by the Rules framed under Article 229, the Government cannot fix the salary or authorise any particular pay scale of an employee of the High Court. It is not the case of the employees that the Chief Justice made any rules, providing a particular pay scale for the employees of the Court, in accordance with the constitutional provisions and that has not been accepted by the Governor. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution, can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principle of "equal pay for equal work" and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees' Welfare Assn. v. Union of India this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame rules after taking into consideration all relevant factors including the recommendation of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-à-vis the employees of the Supreme Court, should equally apply to the Chief Justice of the High Court vis-à-vis the employees of the High Court. 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. The aforesaid assumption is on the basis that a high functionary like the Chief Justice, before framing any rules in relation to the service conditions of the employees of the Court and Page No.# 37/50 granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis. It is important to notice that in the aforesaid judgment, the observation has been made:
"It is not the business of this Court to fix the pay scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution."
The Court also expressed the view in the aforesaid case that the Chief Justice of India is the appropriate authority to consider the question as to the distinctive nature and personality of the employees of the Supreme Court and before laying down the pay scales of the employees, it may be necessary to ascertain the job contents of various categories of employees and nature of duties which are performed by them. Further, at the time of preparing the rules for prescribing the conditions of service, including the fixation of the pay scales, the Chief Justice of India will consider the representations and suggestions of the different categories of employees of the Supreme Court, also keeping in view the financial liability of the Government. In view of the aforesaid decision of this Court, it is difficult for us to sustain the impugned judgment, whereunder the High Court in exercise of its jurisdiction under Article 226, has issued the mandamus, directing a particular pay scale to be given to the Court Stenographers, Personal Assistants and Personal Secretaries attached to the Hon'ble Judges of the Court. In All India Judges' Assn. v. Union of India after a thorough analysis of Articles 233 to 235 of the Constitution, this Court no doubt has issued certain directions, ameliorating the service conditions of the Presiding Officers of the subordinate courts and also dealt with the appropriate pay scales for such Presiding Officers, but ultimately did not propose to finally examine the propriety of the pay scale nor directed that any particular pay scale should be fixed. It is no doubt true that the doctrine of "equal pay for equal work" is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by Page No.# 38/50 the staff attached to the Hon'ble Judges of the Court and direct grant of any particular pay scale to such employees, as that would be a matter for the learned Chief Justice within his jurisdiction under Article 229(2) of the Constitution. We, however, hasten to add that this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employee and apply the principle of "equal pay for equal work" in an appropriate case."
26. The above also deals with what the Chief Justice of the High Court is required to do while making Rules relating to fixation of salary and emoluments of the officers and servants of the High Court. The Chief Justice is required to consider the distinctive nature and personality of the employees of the High Court. The Chief Justice as per the observations of the Supreme Court is required to ascertain the job contents of various categories of employees and the nature of duties which are required to be performed by them. Further, the Chief Justice has to also take into consideration the representations and suggestions of the different categories of employees keeping in view the financial capabilities of the State. In short, what the Pay Commissions under the Central Government or the State Governments are required to take into consideration, the Chief Justice of the High Court is required to carry out a similar exercise insofar as, the employees of the High Court are concerned. It may be apposite to observe that the Pay Commissions, amongst others, are required to take into consideration factors viz: inflation, economic conditions, the Page No.# 39/50 cost of living, prevailing market rates etc.
27. All the above aspects as stated can only be taken into consideration by the Chief Justice of the High Court while fixing the pay and allowances of the employees of the High Court. It is also pertinent to observe that insofar as, the State Governments and Central Government are concerned, periodical revisions have taken place in intervals of 10 years. The employees of the State Government and the Central Government have rights to submit representations as well as suggestions and based upon representations and suggestions, the State Government as well as the Central Government makes necessary changes taking into account the grievances. For example:
for the State of Assam, the Assam Services (Revision of Pay) Rules, 2017 was made applicable on the basis of a Notification dated 17.03.2017 giving effect from 01.04.2016. On the basis of the representations and suggestions submitted by the State Government employees, modifications were made on the basis of anomalies vide a Notification dated 09.03.2019.
28. However, in the case of the employees of the Gauhati High Court, in view of Article 229(2) of the Constitution, neither the Central Pay Commission nor the State Pay Commission can decide on their entitlements or even take into account the representations or suggestions. This is so because the Constitution of India solely vests the authority insofar as the Gauhati High Court is concerned upon the Page No.# 40/50 Chief Justice of the Gauhati High Court who would be required to form a Special Pay Commission for the employees of the Gauhati High Court. Similarly, the conditions of service relating to leave, pension, allowances etc., are required to be regulated only by the Chief Justice or His delegates by making appropriate Rules.
29. It is disheartening to take note of that even after a passage of 77 years from the date of establishment of the Gauhati High Court, the conditions of service of the employees of the Gauhati High Court in respect to pay, leave, pension, allowances are yet to see the light of the day inspite of the clear mandate of Article 229(2) of the Constitution. The employees of the Gauhati High Court have been given the pay and the emoluments as a stop-gap arrangement by the State Governments of Assam, Nagaland, Mizoram and Arunachal Pradesh thereby extending the applicable Pay Rules. It is not out of place to mention that in respect to the employees of the Gauhati High Court inspite of the Draft Pay Rules being made in the year 2013, the same is yet to see the light at end of the tunnel.
30. Now, let this Court take note of the reasons so assigned by the Finance Department for declining the approval. The first reason is financial crunch. This Court finds it relevant at this stage to take note of the judgment of the Supreme Court in the case of the High Court Employees Welfare Association, Calcutta and Others (1) (supra), wherein the Supreme Court did not agree that financial burden would Page No.# 41/50 be a justifiable reason to withhold the approval. The Supreme Court further taking into account that there being a necessity of a meeting point between the Calcutta High Court and the State Government, issued directions for formation of a Special Pay Commission consisting of Judges and Administrators to be constituted by the Chief Justice in consultation with the Government to make a report and on the basis of such report, it was observed that the Chief Justice and the Government shall thrash out the problems and work out of an appropriate formula. Paragraph Nos.8 to 11 of the said judgment is reproduced herein under:-
"8. The purpose and scope of Article 229(2) has been discussed and explicated by this Court in a number of cases. In M. Gurumoorthy v. Accountant General, Assam & Nagaland it was held that the Governor's approval must be sought because the finances have to be provided by the Government and to the extent there is any involvement of expenses, the Government has to approve of it. Therefore, the Governor's approval is an exception to the power of the Chief Justice contemplated by Article 229. It was further held in State of A.P. v. T. Gopalakrishnan Murthi that the grant of approval by the Governor under Article 229 is not a mere formality.
9. In the case of Supreme Court Employees' Welfare Assn. v. Union of India it was held that:
Not only does the Chief Justice have to apply his mind to the framing of the rules but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice and it is highly desirable that there should be consensus between the two. The rules framed by a very high dignitary Page No.# 42/50 such as the Chief Justice of India should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted.
10. In the instant case, the primary reason for refusal of grant of approval by the Governor has been the Government's claim of inability to bear the financial burden imposed by the Draft Rules. The Governor, under Article 229(2) has the power to refuse grant of approval, provided there is "very good reason" for the same. It cannot be said that there has been no exchange of views between the Chief Justice and the State Government. The correspondence between the State Government and the Chief Justice commencing from 21-11-1998 reveals sufficient degree of exchange of ideas. During the negotiation between the Government and the Chief Justice, both sides expressed their respective views on the matter. However, there is no meeting point.
11. The Government will have to bear in mind the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a Special Pay Commission consisting of Judges and Administrators shall be constituted by the Chief Justice in consultation with the Government to make a report and on receipt of such report, the Chief Justice and the Government shall thrash out the problem and work out an appropriate formula in regard to pay scales to be fixed for the High Court employees.
Let such action be taken within six months from today."
31. This Court further finds it relevant to take note of the judgment referred to by the learned counsel appearing on behalf of the Finance Department, i.e. the High Court Employees Welfare Association, Calcutta (2) (supra). A perusal of the judgment, i.e. the High Court Employees Welfare Association, Calcutta and Others (2) (supra) would show that the said judgment was rendered pursuant to the directions Page No.# 43/50 passed by the Supreme Court in High Court Employees Welfare Association, Calcutta and Others (1) (supra). It appears therefrom that pursuant to the Special Pay Commission so constituted on the basis of the order passed in High Court Employees Welfare Association, Calcutta and Others (1) (supra), a report was submitted and thereupon there was an agreement reached in between the State Government and the Chief Justice of the Calcutta High Court and on the basis thereof, the second paragraph of Rule 4 was deleted upon a consensus arrived at. It is under such circumstances that the judgment in the High Court Employees Welfare Association, Calcutta and Others (2) (supra) was rendered by the Supreme Court wherein the Supreme Court observed that the second paragraph of Rule 4 of the modified Draft Pay Rules was not in consonance with what had been agreed upon by the State Government and the Chief Justice and therefore was required to be deleted. It is further seen that the Supreme Court in the said judgment did not issue any mandamus as the State Government had agreed and had given assurance to the approval of the modified Draft Pay Rules excluding the second part of Rule 4. In the opinion of this Court, a similar exercise is required to be carried by the Chief Justice of the Gauhati High Court.
32. This Court further finds it relevant to observe that the reason so assigned in the impugned order dated 03.08.2022 is mainly on the question of financial crunch. The Finance Department of the Page No.# 44/50 Government of Assam had only taken into consideration that it would lead to additional financial outlay which the State Government would not like to incur. The Finance Department, however, did not consider that the Chief Justice of the Gauhati High Court had formulated the Draft Rules by taking into consideration various relevant factors. These relevant factors, which formed the basis of the Draft Rules as well as that the Chief Justice is the sole authority to assess the relevant factors were not taken into consideration. At this stage, this Court would again reiterate the observations made by the Supreme Court in the case of Ramesh Chandra Mundra (supra) wherein the Supreme Court observed that adequate budgeting is an integral part of judicial functioning which touches on the aspect of judicial independence.
33. The impugned order dated 03.08.2022 further do not address the issue as to why there should not be a Uniform Pay Scale for all the employees of the Gauhati High Court, both in the Principal Seat as well as its Outlying Benches taking into account the special characteristics of the work performed by the employees of the Gauhati High Court. Merely on the ground that a Principal Seat Pay (PSP) had been paid to the employees of the Gauhati High Court (Principal Seat), that too, with effect from 01.01.2006 cannot be a ground to decline the approval without arriving at a finding that with the Principal Seat Pay (PSP) along with the Pay as per the Assam Page No.# 45/50 Services (Revision of Pay) Rules, 2017 was adequate for the employees of the Gauhati High Court even if the work performed were different from the employees of the State Government. In fact, in the opinion of this Court, the State Government cannot have a say on the special characteristics of the work performed by the employees of the Gauhati High Court as it is only the Chief Justice and His companion Justices would have a better knowledge of the work performed by the employees of the Gauhati High Court. In that view of the matter, the impugned order dated 03.08.2022 is required to be interfered with.
34. This Court further takes note of the order passed by the Supreme Court in case of Himachal Pradesh High Court Non-Gazetted Employees/Officials Employees Association and Another (supra) wherein the judgment of the High Court of the Himachal Pradesh was upheld wherein at paragraph 94 of the said judgment of the High Court, there was a direction for formation of a Committee. Paragraph 94 of the judgment of the learned Himachal Pradesh High Court is reproduced hereinunder:
"94. In light of the aforesaid discussion, we deem it appropriate to direct that this judgment be placed before Hon'ble the Chief Justice of this High Court to constitute a Committee consisting of at least two Hon'ble Judges of this High Court, Additional Chief Secretary (Home), Additional Chief Secretary (Finance) to the Government of Himachal Pradesh, Principal Secretary, Law, to the Government of Himachal Pradesh or any other person, Registrar General, Registrar (Vigilance) and Registrar (Judicial) of this High Court and two representatives of the Petitioner-Association. The Hon'ble Committee Page No.# 46/50 shall go into the details with respect to grant of hike as per prayer clause of the petition keeping in view the nature of duties and responsibilities discharged by the staff working under various cadres in the adjoining High Courts of Punjab and Haryana and Delhi before recommending the pay pattern as was done by the Division Bench of the Madras High Court in R.N.Arul Jothi's case (supra). Since, Article 229 of the Constitution of India contemplates framing of rules for salary, allowance, leave or pension etc., Hon'ble the Chief Justice may empower the Hon'ble Committee to frame the appropriate rules for the aforesaid purpose for the future. The above exercise may be completed preferably within a period of four months. Ordered accordingly."
35. This Court also cannot be unmindful of the fact that the jurisdiction under Article 226 of the Constitution in the matters of the present nature is very limited. The jurisdiction so conferred in matters of the present kind has to be delicately balanced by keeping in mind the authority of the Chief Justice under Article 229(2) of the Constitution and equally the right of the State Governments to have justifiable reasons. This Court, therefore, is to point out the defects which had led to the declining of the approval and pass appropriate orders so that the High Court as well as the State Governments can act together in making the Rules governing the employees of the Gauhati High Court in respect to pay, leave, pension, allowances etc.
36. This Court further finds it relevant to take note of the Draft Rules of 2013. The said Draft Rules of 2013 only relates to the Principal Seat and not the outlying Benches. This appears to be on account of the litigations filed by the Petitioner Association herein challenging the action of the State Government of Assam. At the cost of repetition, it Page No.# 47/50 is observed that the Gauhati High Court is the High Court of the four States i.e. Assam, Nagaland, Mizoram and Arunachal Pradesh. The Constitution provides that it is only the Chief Justice who has to frame the Rules pertaining to the condition of services of the employees of the High Court and therefore the Pay Rules so drafted is required to be made in such a manner that it applies to the Principal Seat as well as the Outlying Benches else it may result in disparity amongst the employees of the Gauhati High Court. Additionally, confining the Rules only to the Principal Seat and not having Rules applicable to the Outlying Benches may appear that the power under Article 229(2) of the Constitution which is specifically reserved only for Chief Justice to exercise is yielded to the State Governments of Arunachal Pradesh, Mizoram & Nagaland. In fact, the process as delineated in Paragraph 3 hereinabove was initiated keeping that aspect in mind that the Rules would be applicable both for the Principal seat and the Outlying Benches of the Gauhati High Court. However, it further appears that as the Petitioner Association took active interest and the employees Association/representatives of the Outlying Benches remained silent, the Draft Pay Rules remained confined only to the Principal Seat. Taking into account the settled position of law and Article 229(2) of the Constitution, it is the opinion of this Court that there is a requirement of Rules relating to pay, pension, leave, allowances etc., for the employees of the Gauhati High Court which should not only be Page No.# 48/50 confined to the Principal Seat, but also applicable to the employees of the Outlying Benches. The above view of this Court is further strengthened by the fact that the Rules of 1967 applies to all employees of the Gauhati High Court whether they are employed in the Principal Seat or the Outlying Benches.
SECOND POINT FOR CONSIDERATION
37. Accordingly, this Court deems it proper to pass the following observation(s) and direction(s):
(i) The impugned order dated 03.08.2022 whereby the approval to the Draft Rules, 2013 in terms with the proviso to Article 229(2) of the Constitution was declined is not in consonance with the well settled principles of law as discussed hereinabove for which the same is set aside and quashed.
(ii) The Hon'ble Chief Justice of the Gauhati High Court on the administrative side is required to constitute a Committee taking into account the observations made by the Supreme Court in the case of High Court Employees Welfare Association, Calcutta (1) (supra) as well as paragraph 94 of the judgment of the learned High Court of Himachal Pradesh as reproduced in Himachal Pradesh High Court Non-Gazetted Employees/Officials Employees Association and Another (supra) and on the basis thereof, the said Committee so formed be directed to submit a Report to the Page No.# 49/50 Hon'ble Chief Justice. It is observed that the Committee should have representation of the State Governments of Assam, Nagaland, Mizoram and Arunachal Pradesh as well as representatives from the Employees of the Principal Seat and the Outlying Benches. The Hon'ble Chief Justice on the basis of the said Report, if required, on the administrative side hold discussions with the four State Governments and thrash out any issue in respect to the approval of the Rules governing the service conditions in respect to pay, leave, pension, allowances so made by the Hon'ble Chief Justice under Article 229(2) of the Constitution.
(iii). The Registry is directed to place the present order before the Hon'ble Chief Justice, Gauhati High Court for doing the needful.
(iv) Taking into account that the Rules relating to the conditions of service pertaining to pay, leave, pension, allowances would have an impact upon the States of Nagaland, Mizoram and Arunachal Pradesh as well as the employees' Association/representatives who represent the interest of the employees of the Outlying Benches of the Gauhati High Court, this Court directs the petitioner Association to file appropriate applications for impleading them as parties in the instant writ proceedings.
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(v). The present writ petition is kept pending and the Registrar General of the Gauhati High Court is directed to submit a Report as to what had transpired to the observation(s) and direction(s) mentioned in paragraph (ii) hereinabove. The said Report be placed before this Court on or before 18.12.2025.
38. List accordingly.
JUDGE Comparing Assistant