Madras High Court
G.Balaraman vs The State Of Tamil Nadu on 15 November, 2006
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:15.11.2006
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MR.JUSTICE S.K.KRISHNAN
WP.Nos.29859 of 2005 and 31941 of 2006
- - - - -
1. G.Balaraman
2. A.K.Thangavelu
3. C.M.Karthikeyan
4. B.Balaraju
5. S.Selvakumar
6. C.Purushothaman
7. M.Balasubramanian
8. P.Vijayalakshmi
9. J.Ekambaram
10. S.Renganathan
11. G.Palani
12. A.Mariambi ...Petitioners in W.P.No.29859 of 2005
I Fathima ...Petitioner in W.P.No.31941 of 2006
vs.
1. The State of Tamil Nadu
rep. by
The Secretary to Government,
Home (Courts V) Department,
Fort St. George,
Chennai 9
2. The Registrar General
High Court
Chennai 104. ...Respondents in both the W.Ps.
- - - - -
Prayer:- Both these Writ Petitions are filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified mandus to call for the records of the first and second respondents relating to Letter No.5258/Courts.V/99-34 dated 7.3.2003 of the first respondent read with the Official Memorandum of the second respondent in Roc.No.7390/95-Estt. IV dated 7.4.2005, quash the said orders and issue consequential directions to the respondents to issue orders for fixation of pay of the petitioners in the promotional post of Assistant Section Officer under FR-22-B on the date of temporary promotion and sanction subsequent increments for the unqualified period notionally from the date of such fixation of pay with monetary benefits from the fully qualified date.
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For Petitioner in W.P.No.29859/2005 : Mr.R.Yashod Vardhan
For Petitioner in W.P.No.31941/2006 : Mr.V.Bhiman
For Respondents : Mr.K.Babu, AGP.
*******
COMMON ORDER
(Order of the Court was made by ELIPE DHARMA RAO, J.) The petitioners were appointed as Junior Assistants and Typists. While they were working as Junior Assistants and Typists, in the year 1988 about 50 vacancies arose in the post of Assistant Section Officer. As the passing of Special Tests were not mandatory earlier, the petitioners names were included in the panel of March 1988. The petitioners were holding the posts in the feeder category and were eligible for promotion but for the qualifications prescribed with retrospective effect. In view of the urgent requirement to fill up the posts, temporary promotions were given to the petitioners subject to the condition that they pass the Special Tests within a period of two years. Most of the petitioners passed the Special Tests within the period of two years. The Hon'ble Chief Justice was pleased to relax Rule 15(c) of the Madras High Court Service Rules in favour of the remaining unqualified persons and extend the time for passing the Special Tests from time to time. The remaining petitioners also passed the Special Tests within the extended period so granted. Rule 15 (d) of the High Court Service Rules provides that persons appointed on temporary basis shall be paid either the substantive pay or the minimum of pay in the promotional post whichever is higher. Since the minimum of the pay in the promotional post was lower than the substantive pay, the petitioners were permitted to draw their substantive pay and given annual increments in their substantive posts.
2. On the acceptance of the recommendations of the V Pay Commission, the pay scales of staff underwent revision with effect from 1.6.1988. The revised scale of pay of Assistant Section Officer was fixed at Rs.1640-2900. The pay of the petitioners was fixed at Rs.1640 on 1.6.1988. The pay of the qualified persons was however fixed at Rs.1700/- with effect from 1.6.1988. The petitioners were not given increments until they passed the Special Tests. They submitted representations seeking intervention of the Hon'ble Chief Justice for redressal of their grievance.
3. A similar situation was arose to the staff working in the Secretariat and they have filed writ petition and thereafter writ appeal in W.A.Nos.1096 and 1097 of 1985 and ultimately the same was allowed by this Court by a judgment dated 24.1.1990 in W.A.1096 and 1097 of 1985, wherein this Court has held that increments shall be granted upon attaining the qualifications and the period of temporary service will also be counted for grant of increments. However, no arrears shall be paid for the unqualified period.
4. Although the Assistant Section Officer working in the High Court had been granted pay on parity with the Assistant Section Officer working in the Secretariat and the qualifications and the job conditions were also similar, the benefit of counting the unqualified period for the purpose of grant of increments upon attaining the qualifications prescribed was not extended to the Assistant Section Officers working in the High Court, Madras. Several representations had been submitted to the Hon'ble Chief Justice and a letter was addressed by this Court to the Government in this regard.
5. Mean while, the petitioners along with several others have filed a writ petition in W.P.No.1321 of 1999 for refixation of pay of the petitioners therein by sanctioning increments for the unqualified period. In that case, the Government has filed its counter accepting the fact that the similarly placed persons in the Secretariat have been granted increments for the unqualified period. Thereafter, the Hon'ble Chief Justice recommended for the notional increments for the period between the date of promotion and the date of passing of the departmental examinations and by virtue of the recommendations of the Chief Justice the writ petition No.1321 of 1999 was dismissed on 28.4.1999, observing inter alia the Hon'ble Chief Justice addressed to the Government on the issue and even without waiting for that order the petitioners have rushed to this court. It is made clear that it is for the Government to decide as to whether the petitioners are entitled to get the monetary benefits as per recommendations of the Chief Justice in D.O.Letter No.7390/95/Estt.IV dated 31.12.1998.
6. Thereafter, the Government has rejected the issue and communicated the order through the letter dated 7.3.2003 and the High Court has communicated the same to the petitioners in its Official memorandum dated 7.4.2005. These writ petitions are filed challenging order of the first respondent dated 7.3.2003 and the communication of the second respondent dated 7.4.2005 contending that the first respondent erred in holding that the decision of this Honourable High Court in W.A.Nos.1096 and 1097 of 1985 will not apply to the petitioners, even though the High Court has adopted the Service Rules governing the Assistant Section Officers in the Government, based on the Rule 21 of the Madras High Court Service Rules which reads as follows:-
Rule 21 of the Madras High Court Service Rules:-
Pay, Allowances, Leave Salary, Pension and other conditions of service.
The Fundamental Rules, the subsidiary rules thereunder, the Tamil Nadu Leave Rules, The Madras Retiring Invalid and Compassionate Gratuities (Non-pensionable Establishments) Rules, 1941, the Madras General Provident Fund (Madras) Rules, the Madras Liberalized Pension Rules, 1960, the rules regarding the pay of the services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Tamil Nadu shall govern the members of the service in the matter of their pay, allowances, leave, leave salary, pensions and other conditions of service:
Provided that except with regard to salaries, allowances, leave and pensions, the Chief Justice shall exercise the powers vested in the Governor under any of the aforesaid rules:
Provided further that where any such members has elected to be governed by the provisions of the Civil Service Regulations those provisions shall apply to him:
Provided also that the application of the Revised Scales of Pay Rules, 1960, and as prescribed in the rule issued by The Honourable The Chief Justice, shall be applicable.
So, once the High Court has adopted the Service Rules governing the Assistant Section Officers in the Government, the order passed by the Government should have been extended some benefits to the petitioners as recommended by the Honourable Chief Justice.
7. The Government has not filed any counter. But, the learned counsel for the petitioners pointed out the counter affidavit filed by the Government in W.P.No.1321 of 1999, wherein, the Government has accepted the fact that the similarly placed persons in the Secretariat have been granted increments for the unqualified period. In a similar situation, The Government has also passed an order in G.O.Ms.No.358 P&AR (Per-I), dated 13.8.1990 on the basis of the judgment of this Hon'ble High Court, in W.A.Nos.1096 and 1097 of 1985 dated 24.1.1990, wherein in para 2 it has been stated that the petitioners shall be entitled to increments from the date from which they become qualified and the period of their temporary service shall be counted for increment (i.e.) increments have to be computed from the date of first appointment in temporary services but shall not be entitled for arrears on the basis of such computation of increments for the unqualified period. In para 3 of the said G.O., reference has been made that the High Court has not accepted the request for regularization of services from the date of temporary appointment but has ordered that the increments shall be allowed to them from the dates of their temporary appointments as Assistant Section Officer without arrears for the unqualified period. A specific mention has also been made in the said G.O. that the orders of the High Court are applicable to Assistants promoted as Assistant Section Officer from the year 1969 onwards.
8. The learned counsel for the petitioners has also pointed out that in a similar situation, in W.P.No.6800 of 93 dated 13.7.1993 has passed an order directing the Government to grant arrears of pay to the petitioners therein, who are the Assistant Section Officers in the High Court Service in the revised scale of pay of Rs.1640-2900 with effect from 1.6.1988 on par with the Assistant Section Officers in the Secretariat. In pursuant to the order of the High Court, the Government has passed an order in G.O.Ms.No.1220 Home (Court V) Department dated 10.8.1993, wherein the Government has accepted the opinions given by the Special Government Pleader and Advocate General and granted revised scales of pay for the post of Assistant Section Officer in the High Court Service from Rs.1400-2600 to Rs.1640-2900 with effect from 1.6.1988 on par with Assistant Section Officers in the Secretariat Service. It is in view of the above observations the State Government in an earlier occasion has passed an order extending the benefits to the employees of the High Court. So, in view of the order passed by the Government in an earlier occasion in a similar situation, it cannot be said now that the duties, nature of work and service conditions are different.
9. Though the matter is pending from 2005, considering the facts and circumstances of the case, the learned Government Advocate appearing for the respondents supported the stand taken by the Government in a similar situation in an earlier occasion. In such circumstances, the issue with regard to the extension of benefits which were enjoyed by the employees of the Secretariat to that of the High Court employees, who are similarly situated is rapidly common for consideration before the High Court.
10. In a judgment reported in Union of India and others v. S.B.Vohra and others[(2004)2 SCC 150], the Hon'ble Supreme Court while considering the catena of judgments on this issue starting from 1981 has discussed in para 46 as follows:
"in no unmistakable terms suggest that it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like 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."
11. The Hon'ble Apex Court in a decision reported in High Court of Judicature for Rajasthan v. Ramesh chand Paliwal [(1998(3) SCC 72], while considering the Article 229 of the Constitution had held that the Chief Justice has requisite power to revise scales of pay subject of course to the approval granted in this behalf by the Governor. It has also observed as follows:-
"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."
"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. In view of the 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 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 authorize 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."
The same view was reiterated in the earlier judgments of the Supreme Court reported in State of Andhra Pradesh v. T.Gopalakrishnan Murthi (AIR 1976 Supreme Court 123), [(1976) 2 SCC 883, Supreme Court Employees' Welfare Assn. v. Union of India [(1989) 4 SCC 187 and 1990 SC 334.
12. From the above authorities relied on and as per Article 229 of the Constitution of India, the office of the Chief Justice of the High Court is a highest office and in the interest of administration if the Chief Justice has taken a progressive step specifically to ameliorate the service condition of the officers and staff working under him the State Government in the present case would hardly raise any objection to the extending the the pay scale granted in favour of the Assistant Section Officers in the Secretariat to the Assistant Section Officers of the High Court. With regard to the recommendation for revision of the pay scale on par with the pay payable to the corresponding post in the Secretariat, the Government should have passed favourable orders instead of rejecting the same.
13. It is unfortunate to mention that though the Chief Justice has recommended through letter dated 31.12.1998 and the writ petition was dismissed on 28.12.1999, the Government rejected the proposal only on 7.3.2003 and communicated the rejection order only on 7.4.2005.
14. It is to be seen that the State Government on an earlier occasion in G.O.Ms.No.1220 Home (Court V) Department dated 10.8.1993, has passed an order extending the benefits to the employees of the High Court on par with the employees of the Secretariat. Once the Rules and regulations of the Government servants having been adopted by the High Court under Rule 21 of the High Court Employees' Service Rules, we are of the considered view that the impugned order passed by the Government on a flimsy ground that the nature of work and service conditions of the Assistant Section Officers working in the Secretariat and the Assistant Section Officers working in the High Court are different must be held unconstitutional and contrary to law in view of the observations made in the decision of the Supreme Court and hence, the impugned order is liable to be set aside.
15. Both the writ petitions are allowed. The impugned order is set aside. The first respondent is directed to pass appropriate orders within a period of twelve weeks from the date of receipt of copy of this order. No costs.
gr.
To
1. The Secretary to Government, Govt. of Tamil Nadu, Home (Courts V) Department, Fort St. George, Chennai 9
2. The Registrar General, High Court, Chennai 104.
[PRV/8715]