Calcutta High Court
The High Court Employees' Welfare ... vs The State Of West Bengal And Ors on 19 April, 2011
Author: Bhaskar Bhattacharya
Bench: Tapen Sen, Bhaskar Bhattacharya
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IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
W.P. No. 1630 of 2010
The High Court Employees' Welfare Association & Ors.
Vs.
The State of West Bengal and Ors.
CORAM : The Hon'ble Mr. Justice Tapen Sen
For the Petitioners : Mr. Kashi Kanta Moitra, Sr. Advocate
Mr. Partha Sarathi Sengupta, Sr. Advocate
Mr. Soumya Majumdar, Advocate
For the State : Mr. Balai Chandra Roy, Advocate General
Mr. A.K. Chatterjee, Advocate
Mrs. Seba Roy, Advocate
Mrs. Soma Kar Ghosh, Advocate
For the High Court : Mr. Aloke Kumar Ghosh
Heard on : 23.12.10, 14.2.11, 15.2.11, 24.2.11,
1.3.11, 3.3.11, 8.3.11, 24.3.11
C.A.V. on : 24.3.2011
Judgment Delivered on : 19th April, 2011
Tapen Sen, J.: The Petitioner No. 1 is a Society registered under
the West Bengal Societies Registration Act, 1961 and it represents the cause of
the employees appointed in the High Court at Calcutta (hereinafter referred to as
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the Calcutta High Court). The Petitioner Nos. 2 and 3 are employees of the
Calcutta High Court and the Petitioner No. 2 is the Joint Secretary of the
Association. The facts of the case, as pleaded, are as follows:-
Facts
1. The Calcutta High Court Service (Conditions of
Service and Recruitment) Rules, 1960 were framed under Article 229 of the
Constitution of India classifying the service into separate categories such as
Class-I, Class-II, Class-III and Class-IV. Rule 23 of the said Rules lays down that
the provisions of the West Bengal Service Rules insofar as they relate to salaries,
leave and allowances shall, subject to the exceptions provided therein, apply to
the said classes of employees of the Calcutta High Court as they apply to
Government Servants/Employees of Corresponding classes in the service of the
Government of West Bengal. The proviso appended thereto lays down that the
powers exercisable by the Government of the State under the West Bengal
Service Rules, shall be exercised by the Chief Justice and the powers exercisable
by any authority subordinate to the Government, shall be exercised by the Chief
Justice or by such person or persons as he may, by general or special Order,
direct.
2. The employees of the Calcutta High Court were
earlier brought under the purview of the Pay Commissions of the State
Government and in respect of the first three State Pay Commissions, the pay and
allowances and other benefits which were given to the State Government
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employees, were adopted by the said Court in respect of the different classes of
employees referred to above.
3. By a Resolution of the Department of Finance
(Audit) No. 11832-F dated 27.12.1995, the employees of the Calcutta High Court
were brought under the sweep of the 4th State Pay Commission but the Hon'ble
Chief Justice did not accept the recommendations of the said Pay Commission.
4. In 1996, the Chief Justice framed a "Special Pay
Commission" for the employees of the Calcutta High Court for purposes of
deciding the pattern of the pay scale of the employees. A Report was submitted
before the Chief Justice and it was placed in Full Court and it was also
transmitted to the Government of West Bengal for implementation.
5. The recommendations of the five Judges'
Committee on pay scales and allowances and other service benefits as well as
staffing pattern which were formulated as the High Court Employees' (ROPA)
Rules, 1998 were, at that stage, not accepted by the State Government. The State
Government did not accept the recommendations for implementation of pay scale
and other service conditions of the employees of the Calcutta High Court as was
decided in the Full Court meeting and therefore, the employees filed a Writ
Petition before the Supreme Court of India vide W.P. (C) No. 134 of 1999.
6. Various Interim Orders were passed from time to
time allowing pay and allowances to the employees in terms of the West Bengal
Service (ROPA) Rules 1998 and the State Government also implemented the same
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as per Orders and Directions passed and made by the Hon'ble Supreme Court of
India.
7. An Interim Order was passed in the said Writ
Petition on 18.11.2003 by holding, in paragraph-11, [Order reported in (2004) 1
SCC 334] that "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 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." (Quoted but emphasis supplied by this Court)
8. In the year 2008, the Chief Justice directed the
formation of a "Special Pay Committee" to evaluate the nature and workload of
the employees of the Calcutta High Court and also to ascertain the pay scale and
allowances to which they may be rightfully entitled to. The said "Special Pay
Committee" consisted of the following members in the following manner:-
Judicial Members
a) Hon'ble Mr. Justice Bhaskar Bhattacharya
b) Hon'ble Mr. Justice Pinaki Chandra Ghose
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c) Hon'ble Mr. Justice S.P. Talukdar
Administrative Members
(included with the concurrence of the Department of Finance being
representatives of the State)
d) Shri Swapan Kumar Chatterjee; and
e) Shri Ananda Gopal Ghosh
9. Subsequent to the implementation of the 5th State
Pay Commission's recommendations, the Hon'ble Chief Justice adopted the same
in the year 2009 as an interim measure till finalization and implementation of the
recommendations of the Special Pay Committee referred to above. It is stated that
after long deliberations and discussions for almost two-and-a-half years, the
Committee came to a finding that there was lack of competent and efficient
employees in the Calcutta High Court because of the low emoluments that are
given to them and that many competent and efficient persons were leaving their
jobs on being given better emoluments elsewhere. The Judicial Members further
observed that with the retirement of a handful of efficient employees who were
still working, there would be shortage of efficient and competent hands to
discharge multifarious nature of jobs of the said Court. However the
Administrative Members differed to such observations and suggestions and
recorded their dissent and difference of opinion also.
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10. The recommendations of the Special Pay
Committee which was finally signed on 24.8.2010 requires to be quoted as it
would go to show the Herculean efforts which were undertaken by the Judicial
Members keeping in mind the seriousness of the project at hand and for which
they were required to deliberate.
The said Report was preceded by an introductory
which would go to show that the members of the Committee submitted both the
interim Report as well as the Final Report before the Chief Justice. The
introductory along with the interim report as well as the final report reads as
follows and portions thereof which have appeared to this Court to be of
importance have been highlighted either by underlining or by bold fonts. The
same is quoted below :
Introductory
Special Pay Commission
For
The employees of the High Court, High Court Guest House
And
West Bengal Judicial Academy
2009
The Government of West Bengal constituted the 5th Pay Commission
for the State Government employees and certain other categories of
employees to examine the present structure of pay and conditions of
service and to suggest changes which might be desirable and feasible
keeping in view, inter alia, the needs of social accountability and
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efficiency of the administration, to examine the existing promotion
policies and related issues and to suggest suitable changes which
might be desirable and feasible after taking into account the norms of
promotion, efficiency/productivity wherever relevant, with special
regard to improving people-orientation and efficiency of the
administration, to examine the special allowances and other
allowances, concessions, including traveling allowances and leave
travel concessions and other benefits, which are available to the
employees in consideration to the pay and allowances and to suggest
changes which might be desirable and feasible and to examine issues
relevant to the retirement-benefits and to make recommendations on
each of the above noted aspects.
The employees of the High Court at Calcutta (A.S. & O.S.), High Court
Guest House and the West Bengal Judicial Academy were not
included within the purview of the terms and references of the 5th Pay
commission constituted by the Government of West Bengal. Following
the solemn order of the Hon'ble Supreme Court on the earlier
occasion of revision of pay and allowances of the Calcutta High Court
employees passed in W.P. Civil No. 134 of 1999 wherein the Hon'ble
Court was pleased to observe that the special nature of the work done
by the employees in the High Court can really be appreciated by the
Chief Justice and His colleagues alone and to direct constitution of a
special pay commission consisting of Hon'ble Judges and
Administrators in consultation with the Government, the Hon'ble the
Chief Justice of the High Court was pleased to constitute a Special
Pay Commission in consultation with the State Government
consisting of three Judges of this Court and two Administrators
nominated by the Government of West Bengal for evaluating the
question of revision of pay of the employees of the High Court
including the employees of the Calcutta high Court Guest House and
the West Bengal Judicial Academy upon due consideration of the
conditions of service of the employees concerned.
The Special Pay Commission undertook the task of evaluating
the revision of Pay and Allowances upon due consideration of the
conditions of service, the volume of the works of the Court, the
workload of the employees of different categories, the skill which the
employees are required to acquire having regard to the peculiar
nature of their job, onerous responsibilities they bear in discharge of
their duties, the minimum education and technical qualification and
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professional attainments required for recruitment to the posts and for
proper discharge of the duties of the employees of different categories
and the limited promotional avenues of the different categories of
employees in the manner it required.
Keeping in view the above principle, the Commission consisting of five
Members had detailed deliberation for the last one year. In the
process, in the month of April, 2009 the Commission unaimounsly
passed an interim recommendation which was in tune with the
recommendation of the Fifth Pay Commission for the State
Government employees of the government of West Bengal and it was
decided that till publication of the final report by the Commission, the
High Court employees will go on receiving, by way of an interim
measure, the same rate of emoluments received by the State
Government employees in revising pay packages. It was further
agreed by the Members of the Commission that the pensionary
benefit granted by the Finance Department by its Memorandum
dated 24th February, 2009 in accordance with the recommendation of
the Fifth Pay Commission should apply, mutatis mutandis, to the
employees under the zone of consideration of the Commission for
whom the Calcutta High court Services (Revision of Pay and
Allowances) Rules, 2007 applies.
A true copy of such interim report unanimously adopted by the
commission is annexed herewith and marked with the letter "A".
Subsequently, however, while preparing the final report for the
purpose of fixing the remuneration of the employees of the High
Court, there were differences of opinion among the Members of the
Commission. The two Administrative-Members of the Commission did
not agree with the views of the three Judicial-Members of the
Commission as regards the suggested emoluments which is the
subject-matter of consideration of the Commission, although, there
was unanimity among all the Members regarding some type of
benefits to be conferred among the employees.
The unanimous view of the Commission as regards the various
suggested benefits given to the employees of the High Court are
annexed to this report and is marked with the letter "B".
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As indicated above, there being differences of opinion as
regards the service benefit, which should be just and equitable to the
employees of the High Court, the three Judicial-Members of the
Commission propose to give a separate report which is annexed
herewith and marked with the letter "C".
The Administrative-Members of the Commission have given
their separate views disagreeing with the views of the Judicial-
Members of the Commission and those are annexed herewith and
marked with the letter "D".
The minutes of all the meetings of the Pay Commission are
also annexed with this Report and marked with the letter "E".
Let this report containing the interim report, unanimous view
on some of the suggested benefits, and the two separate views among
the members along with the annexures indicated therein and the
minutes of all the meetings of the Commission be placed before the
Hon'ble Chief Justice.
..........................
(Bhaskar Bhattacharya, J.) Chairman, Special Pay Commission ........................ .......................
(Pinaki Chandra Ghose,J.) (Kalidas Mukherjee,J.)
Member Member
............................ .............................
(Swapan Kumar Chattopadhyay) (Ananda Gopal Ghosh)
Member Member
(Quoted)
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Interim Report
Special Pay Commission
For
The employees of the High Court, High Court Guest House And West Bengal Judicial Academy 2009 The Government of West Bengal constituted the 5th Pay Commission for the State Government employees and certain other categories of employees to examine the present structure of pay and conditions of service and to suggest changes which might be desirable and feasible keeping in view, inter alia, the needs of social accountability and efficiency of the administration, to examine the existing promotion policies and related issues and to suggest suitable changes which might be desirable and feasible after taking into account the norms of promotion, efficiency/productivity wherever relevant, with special regard to improving people-orientation and efficiency of the administration, to examine the special allowances and other allowances, concessions, including traveling allowances and leave travel concessions and other benefits, which are available to the employees in consideration to the pay and allowances and to suggest changes which might be desirable and feasible and to examine issues relevant to the retirement-benefits and to make recommendations on each of the above noted aspects.
The employees of the High Court at Calcutta (A.S. & O.S.), High Court Guest House and the West Bengal Judicial Academy were not included within the purview of the terms and references of the 5th Pay commission constituted by the Government of West Bengal. Following the solemn order of the Hon'ble Supreme Court on the earlier occasion of revision of pay and allowances of the Calcutta High Court employees passed in W.P. Civil No. 134 of 1999 wherein the Hon'ble Court was pleased to observe that the special nature of the work done by the employees in the High Court can really be appreciated by the 11 Chief Justice and His colleagues alone and to direct constitution of a special pay commission consisting of Hon'ble Judges and Administrators in consultation with the Government, the Hon'ble the Chief Justice of the High Court was pleased to constitute a Special Pay Commission in consultation with the State Government consisting of three Hon'ble Judges and two Administrators nominated by the Government of West Bengal for evaluating the question of revision of pay of the employees of the High Court including the employees of the Calcutta high Court Guest House and the West Bengal Judicial Academy upon due consideration of the conditions of service of the employees concerned.
The Special Pay Commission undertook the task of evaluating the revision of Pay and Allowances upon due consideration of the conditions of service, the volume of the works of the Court, the workload of the employees of different categories, the skill which the employees are required to acquire having regard to the peculiar nature of their job, onerous responsibilities they bear in discharge of their duties, the minimum education and technical qualification and professional attainments required for recruitment to the posts and for proper discharge of the duties of the employees of different categories and the limited promotional avenues of the different categories of employees in the manner it required and while considering those aspects, the Commission was of the view that in arriving at the complete decision, it would take some amount of time and in the meantime, there was no ground for not accepting the enhanced rate of pay, recommended to the State Government employees as revised by the West Bengal Services (Revision of Pay and Allowances) Rules 2009 corresponding to the pay of different categories of employees of the High Court in addition to the special allowance, if any, to which they are entitled in terms of the "Calcutta High Court (A.S. & O.S.) Service (Revision of Pay and Allowances) Rules 2007", as an interim measure, subject to finalisation of the revision of pay by the commission. There was consensus among the members of the Commission in accepting the principles of "Pay Band" and "Grade Pay" as introduced by the 5th Pay Commission for the State Government employees in revising pay-packages of the employees under consideration.
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There was also consensus among the members of the commission that the pensionary benefits granted as per Finance Department Memorandum Nos. 200-F(Pen), 201- F(Pen), 202-F (Pen), all dated 25.2.2009 should apply mutatis mutandis to the employees under the zone of consideration of the Commission to whom the Calcutta High Court Services (Revision of Pay and Allowances) Rules 2007, applies.
The Commission accordingly makes the
-: INTERIM RECOMMENDATIONS :-
1) Definitions- In these recommendations unless the context otherwise requires:
(a) "existing basic pay" means - the pay drawn in the prescribed existing scale of pay, including stagnation increment(s), if any, but does not include any other type of pay;
(b) "existing scale" means- in relation to a High Court employee, the existing scale applicable to the post held by the High Court employee or, as the case may be, the special or general orders of the High Court as on the 1st January, 2006, whether in a substantive or officiating or temporary capacity.
(c) "existing emoluments" mean the aggregate of-
(i) existing basic pay (ii) dearness pay appropriate to the basic pay, and
(iii) dearness allowance appropriate to the basic pay plus dearness pay at index average 536 (1982=100);
(d) "present scale", in relation to any post specified in column (2) of Part D of Schedule I, means the scale of pay specified against that post in column (3) thereof;
(e) "pay in the pay band" means pay drawn in the running pay bands specified in column (5) of Part D of Schedule I;
(f) "grade pay" means a fixed amount corresponding to the pre-
revised pay scales/posts;
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(g) "revised pay structure", in relation any post specified in column (2) of Part D of Schedule I, means the pay band scale and grade pay specified against column (5) ad column (6) of that Part, unless a different revised pay in the pay band and grade pay is notified separately for that post;
(h) "basic pay in the revised pay structure" means the pay draw in the prescribed pay band plus applicable grade pay but does not include any other type of pay;
(i) "revised emoluments" means the pay in the pay band plus the grade pay of an employee in the revised pay structure and includes special allowance, if any, admissible to him.
(j) "Schedule" means the Schedule appended to these recommendations.
Words and expression used but not defined in these rules shall have the same meanings as respectively assigned to them in the Calcutta High Court Services Rules, 1960 and the Calcutta High Court (Appellate Side and Original Side) Services (Revision of Pay & Allowances), Rules 2007.
2) Introduction of Pay bank with Grade Pay- the Pay Band with Grade Pay shall be introduced for revision of Pay and Allowances of the employees in the zone of consideration of the commission to whom Calcutta High Court Services (Revision of Pay and Allowances ) Rules, 2007 applies;
3) Application of pay structure of the State government employees as a interim measure- the pay structure of the State Government employees according to the West Bengal Services (ROPA) Rules, 2009 be made applicable to the High Court employees in the zone of consideration of the commission to whom Calcutta High Court Services (Revision of Pay and Allowances ) Rules, 2007 applies corresponding to the existing pay scales to each category of employees as an interim measure in the manner as described in Schedule I to this recommendation subject to finalisation of pay band, pay band scale, grade pay and other allowances by the Commission.
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4) Entitlement of special allowances- the employees in the zone of consideration shall be entitled to the same amount of special allowances, if any, as admissible to them in accordance with the Calcutta High Court Services (Revision of Pay and Allowances ) Rules, 2007.
5) Fixation of initial pay in the interim pay structure- the fixation of initial pay in the interim pay structure of the employees shall be made in accordance with the Rule 7 of the West Bengal Services (ROPA) Rules, 2009. A copy of Rule 7 of the West Bengal Services (ROPA) Rules, 2009 be treated as a part of this recommendation and marked as Annexure A.
6) Fixation of interim pay structure of the employees on or after 01.01.2006- the pay of the employees recruited on or after 01.01.2006 shall be fixed in terms Rule 8 of the West Bengal Services (ROPA) Rules, 2009 subject to the final decision of the Commission on the pay band, pay band scale, grade pay and other allowances. A copy of Rule 8 of the West Bengal Services (ROPA) Rules, 2009 be treated as a part this recommendation and marked as Annexure B.
7) Fixation of pay in the interim pay structure on promotion on or after 01.01.2006- the pay on promotion on or after 01.01.2006 shall be fixed in terms Rule 11 of the West Bengal Services (ROPA) Rules, 2009 subject to the final decision of the Commission on the pay band, pay band scale, grade pay and other allowances. A copy of Rule 11 of the West Bengal Services (ROPA) Rules, 2009 will form a part this recommendation and marked as Annexure C.
8) Rate of increment in the interim pay structure- the rate of annual increment in the interim pay structure shall be made in accordance with Rule 9 of the West Bengal Services (ROPA) Rules, 2009 subject to final decision. A copy of Rule 9 of the West Bengal Services (ROPA) Rules, 2009 will form a part of this recommendation and is marked as Annexure D.
9) The date of annual increment- the date of annual increment of the employees in the zone of consideration shall be the 1st day of July every year as per the West Bengal Services (ROPA) Rules, 2009. 15
10) Payment of arrears- The employees of the High Court and other employees in zone of consideration to whom the Calcutta High Court Services (Revision of Pay and Allowances) Rules, 2007 applies shall be entitled to draw pay and allowances in the revised rates of the interim pay structures as per Schedule I from 01.04.2008 and the arrear of pay and allowances to which they may be entitled in respect of the period from 1st of April, 2008 to 31st day of March, 2009 shall be paid, mutatis mutandis, in accordance with Rule 12 of the West Bengal Services (ROPA) Rules, 2009.
The employees in the zone of consideration who retired between 31st day of March, 2008 and 1st Day of April, 2009 shall receive arrears of pay for the period from 1st April, 2008 to the date of retirement in cash. Rule 12 of the West Bengal Services (ROPA) Rules, 2009 excepting Note thereunder will form a part of this recommendation and is marked as Annexure-E.
11. Dearness Allowance- The employees of the High Court and other employees in the zone of consideration to whom Calcutta High Court Services (Revision of Pay and Allowances) Rules, 2007 applies shall be entitled to draw dearness allowance in accordance with the Finance Department Audit Branch Memorandum No. 1692F, dated 23.2.2009. a copy of the Finance Department Audit Brach Memorandum No. 1692F, dated 23.2.2009 be treated as a part of this recommendation and is marked as Annexure-F.
12. House Rent Allowance- The employees of the High Court and other employees in the zone of consideration to whom Calcutta High Court Services (Revision of Pay and Allowances) Rules, 2007 applies shall be entitled to draw house rent allowance in accordance with paragraph 11 of the Finance Department Audit Branch Memorandum No. 1691F, dated 23.2.2009. A copy of the Finance Department Audit Brach Memorandum No. 1691F, dated 23.2.2009 be treated as a part of this recommendation and is marked as Annexure-G.
13. Medical Allowance- The employees of the High Court including the pensioners and other employees in the zone of consideration to whom Calcutta High Court Services (Revision of Pay and Allowances) Rules, 2007 applies shall be entitled to draw medical allowance in 16 accordance with the Finance Department Audit Branch Memorandum No. 1692F, dated 23.2.2009. The relevant provision of the Memorandum No. 1691F, dated 23.2.2009 will form a pat of this recommendation and is marked as Annexure-H.
14) Pensionary benefits- The Finance Department Pension Branch Memorandum Nos. 200-F(Pen),201-F(Pen), 202-F (Pen), all dated 25.2.2009 as applicable to the State Government employees and pensioners with all annexures shall apply to the High Court employees and other employees in the zone of consideration to whom the Calcutta High Court Services (Revision of Pay and Allowances) Rules 2007, applies, mutatis mutandis . These provisions shall be applicable to the employees of the High Court including the pensioners and other employees in the zone of consideration retiring on or after 25.2.2009 and should not be applicable in respect of those employees who have retired between 1st day of January, 2006 but before 25th day of February, 2009. A copy of the Finance Department Pension Branch Memorandum No. 200-F(Pen), 201- F(Pen), 202-F (Pen), all dated 25.2.2009 be made part of this recommendation and is marked as Annexure I,J, K respectively .
Any subsequent amendment West Bengal Services (Revision of Pay & Allowances) Rules, 2009 before publication of the final Report of this commission shall apply mutatis mutandis to the employees in the zone of consideration of this Commission as interim measure.
..........................
(Bhaskar Bhattacharya, J.) Chairman, Special Pay Commission ........................ .......................
(Pinaki Chandra Ghose,J.) (Kalidas Mukherjee,J.)
Member Member
............................ .............................
(Swapan Kumar Chattopadhyay) (Ananda Gopal Ghosh)
Member Member
Special Secretary to the Govt. of W.B. Special Secretary to the Govt. of W.B. Finance Department Home Department (Quoted) 17 Final Report Annexure-"C"
Recommendation of the Judicial Members of the Commission While fixing the emoluments of the employees of the Calcutta High Court, we have taken into consideration the peculiar nature of job required to be performed by the various types of employees engaged in High Court. There is no difference of opinion that the nature of job performed by an employee of a High Court is different from that performed by the State government employees in different departments.
We have also taken into consideration the increased volume of works in the High Court that has taken place after the last fixation of emoluments of the High Court employees in the year 1996 and the corresponding increase of the staff strength. From the records, it appears that the total number of cases and applications pending on the Appellate Side at the beginning of the present Commission work was 3,70,497 and that on the Original Side was 75,143 in the year 2009. In comparison with the above figures, in the year 1996, the total number of cases and applications pending on the Appellate Side was 2,25,208 and on the Original Side, it was 39,104. The total number of employees of the High Court in the year 2009 is 1,465 on the Appellate Side and 585 on the Original side whereas in the year 1996, the corresponding figures were 1,169 and 556 respectively. Thus, it is quite evident that though the increase in total number of cases ad applications for the said period has been 64.5% on the Appellate side and 92% on the Original Side, the corresponding increase in the employees; strength has been only 25% on the Appellate Side and 5.2 % on the Original Side.
We cannot lose sight of the fact that each employee of the High Court works with extreme responsibility, as he is required to perform his part of the duties with promptitude and in some cases, within a few hours of entrustment of the job. This is essential in order to facilitate the compliance of the orders and judgments passed by the Hon'ble Judges within the specified period or else, the employee 18 concerned may eve face contempt proceeding or disciplinary proceeding.
Having regard to the special nature of job, an employee holding the post in Basic Grade Group 'C' (except the post of Driver) and above, is required to perform, in our opinion, the minimum educational qualification of such employee should be that he must be a Graduate or having a relevant diploma on completion of a three years' course after passing the Higher Secondary examination, if he is appointed in a post of technical nature. We, therefore, propose the aforesaid modification in the educational qualification for the appointment of employees of Basic Grade Group 'C' category except for the post of Driver.
The sanctioned strength of the Data Entry Operator, in our opinion, should be increased from the existing number of 25 to 125, as within a period of two years, there will be complete computerisation of this Court and at that time, their posting is required in every department of the Court.
At present, there is no scope of promotion available to the Data Entry Operators although they are contributing a substantial role in the functioning of this Court and in no time, but for their sufficient participation, on any day, the entire functioning of the Court will be totally jeopardised. The promotional avenue for the Data Entry Operators, in our opinion, should be open at least to the rank of Assistant Registrar on non-functional seniority basis. This can be achieved by conferring the benefit of the scales of pay available to the employees with different grades in the corresponding general branch of the High Court starting from the grade of Lower Division Assistant thrice after completion of eight year each and subsequently, after the completion of four years each for the next stages of their service career.
At this stage, in order to appreciate the duties of various categories of staff employed in the High Court, we annex herewith the details of the duties entrusted to the various categories of employees, which are annexed with the letter "(I)" to this report.
From the nature of job performed by the different categories of the employees of the High Court, as indicated in Annexure "(I)" to this 19 report, it is clear that the nature of job performed by the High Court employees can, in no case, be similar to those entrusted to the other State Government employees. Particularly, the duties of Group 'C' and Group 'D' as well as the Personal Assistants to the Hon'ble Judges, Assistant Registrars, Assistant Registrars (Court), Assistant Court Officers, as also the Assistant Registrars (Court Recording) in the Original Side are totally different from the ones performed by the State Government employees stationed in different departments.
We also cannot shut our eyes to the fact that at present the Office of the High Court is not restricted to one building but is extended to three different buildings, namely, the Main Building, the Centenary Building and 5, Council House Street. Over and above, within a month or two, a further new building will be inaugurated which is at a distance of about 100 meters from the main building. For the above reason, the Group 'D' employees of the High Court are required to bear tremendous additional stress and strain in carrying files from the Main Building to the other buildings. We have taken note of the fact that for the purpose of carrying a file from any Court situated in the second floor of the Main Building to the Centenary Building or to the proposed New building at the fourth or fifth floor it would take at least 15 minutes. In the process, a Group 'D' employee is required to pass through 100 steps of staircase in the Main Building and similar in the other buildings after crossing 100 meters public road during summer and rainy season without having any protection from sun and rain. A Group 'D' employee, attached to Court or ay department, in addition to his normal duty as such, is required to carry at least 200 files on average basis, if not more, and one is not expected to carry more than 20 files at a time weighing at least 10 kilograms on average. An employee of the State Government posted any of the offices is not required to experience this type of hazardous job everyday.
We have made survey of various records, which are pending as well as those, which are already disposed of, relating to the First Miscellaneous Appeals, First Appeals as well as Second Appeals. We found that each record moved from one department to another on an average of 70 times, because on average, at least 70 Orders, if not more, have been passed on those matters starting from Lawazima stage. After taking into consideration the fact that the total number 20 of cases and connected applications pending on the Appellate Side is 3,70,497 and that on the Original Side is 75,143, we quite appreciate how huge number of records have been moving from one department to the other everyday on the above basis. Such movements of files are dealt with by a total number of 186 Lower Division assistants on the appellate Side, 103 Lower Division Assistants on the Original Side, 196 Upper Division Assistants on the Appellate Side and 102 Upper Division Assistants on the Original Side. They are assisted by 539 Group 'D' staff of Appellate Side and 196 Group 'D' of Original Side under the supervision of 75 supervisory staff of Appellate Side and 34 supervisory staff of Original Side.
The entire circulatory movement of the files, as aforesaid, on various tables within a department or through various departments and Courts are handled by the Group 'D' employees.
In addition to those, the employees are also required to deal with various correspondences with the other Hon'ble High Courts, Subordinate Courts and with the Government including transfer, appointment, leave, etc. with the members of the subordinate judiciary of the State. They are also required to perform the entire work relating to the accounting of the pay of the Hon'ble Judges as well as the staff of this Court.
From the aforesaid fact, it is explicit that the real pressure of the job of movements of files falls upon Group 'C' staff in the general branch of the High Court.
As regards the technical branch, the qualification of the Personal Assistants to the Hon'ble Judges is that they should be capable of taking direction in shorthand with the speed of 120 w.p.m. and of transcribing those with the typing speed of 30 w.p.m. The stenographers appointed by the State Government are recruited on the basis of capability of taking dictation in shorthand with the speed of 80 w.p.m. From the post of Personal Assistants of the Hon'ble Judges, ultimately, when the turn comes for being promoted to the post of Assistant Registrars (Court), such employees are required to undergo a fresh test on the basis of merit-cum-seniority and at that stage, they must be capable of taking dictation at the speed of 140 w.p.m. So far the qualification of the Assistant Registrars (Court 21 Recording) in the Original Side is concerned, from the very beginning, they are required to have the ability of taking dictation at the speed of 160 w.p.m. which is beyond the dream of any State Government stenographer.
We are of the view that for the purpose of expeditious disposal of the matters, the employees of the technical branch of the High Court must be competent to take dictation and to transcribe the same at the above speed, if not more. With the existing scale of pay, we are unable to get qualified candidates for being appointed in the existing vacancies. By way of illustration, we are tempted to mention here that in the last advertisement to fill in the vacancies of the post of 72 Personal Assistants to the Hon'ble Judges in the Appellate Side, less than 200 candidates appeared at the examination. Among those candidates, most of them are unfit and it will be an arduous task to recruit suitable candidates, who will be in a position to cope with the recruitment of the job.
Over and above, unlike the State Government employees, all the employees of the High Court, for the purpose of promotion to the next stage, are required to undergo a fresh examination for selection, which is unknown to the employees of the State Government. The present educational qualification of getting appointment in the post of Lower Division Assistant or Personal Assistant in this Court is that one must pass Higher Secondary Examination whereas for the corresponding posts in the State Government service, one is required to have passed Madhyamik Examination. Thus, the present educational qualification of a High Court employee is higher than that of the corresponding State Government Employee. We, however, recommend that the present minimum educational qualification of passing higher Secondary Examination should be enhanced to Graduation or three years' Diploma Course after passing Higher Secondary Examination in case of technical staff as indicated earlier.
We could not convince the Administrative-Members of the Commission that in view of the aforesaid peculiar nature of job of an employee of the High Court, their salary cannot be equated with the employees of the State Government. In our opinion, for the purpose of running of administration of the High Court with such a huge load of work, if we do not increase the emoluments of the existing employees 22 of Group 'C', Group 'D', Personal Assistants to the Hon'ble Judges up to the stage of Joint Registrars, it will be impossible to run the administration for the absence of qualified employees. After a few years, on the retirement of the existing experienced staff of the High Court, we would require fresh batch of competent candidates. If there is no improvement of the service benefit now available to them, there is no scope of getting competent employees. Even we have noticed that some of the competent employees, after serving for some period in High Court In Group 'C' cadre or in the post of Personal Assistants to the Hon'ble Judges, have left the job being attracted by better emoluments in different other services.
For the purpose of fixing a just amount of emoluments of the employees of the High Court, we have ascertained the service benefits given to the employees of the other High Courts in the country and we have received in details the amount of remuneration given to the different categories of the employees engaged in other High Courts. On consideration of the total amount of emoluments received by such employees of different High Courts, we are of the view that having regard to the fact that the workload (total number of pending cases divided by total number of employees) of the Calcutta High Court being the second highest among all High Courts, the remuneration given to the employees of the Calcutta High Court should be at par with other High Courts stationed at A-1 cities of this country. A chart showing the workload of different High Courts, as indicated above, is annexed to our report and is marked with the letter "(II)".
At this juncture, we also refer to various scales of pay of different High Courts with other admissible allowances payable to those employees which are collectively annexed with the letter "(III)".
It will appear from those charts that in the most of the High Courts of this country, in addition to the scales of pay, various other types of allowances are given to those employees and in most of the High Courts, the rate of Dearness Allowance is 8% higher than the one given to the employees of this Court. Over and above, in all those High Courts stationed at A-1 cities of the country the rate of House Rent Allowance payable is 30% of the Basic Pay whereas in this Court, the existing House Rent Allowance is 15%. Thus, the employees of the other High Courts stationed in any A-1 city are 23 enjoying 23% additional emoluments to their Basic Pay than that payable to an employee of the Calcutta High Court. In view of such fact, we tried to impress upon the Administrative-Members of the Commission that although apparently the scale of pay of many other High Courts may appear to be less than the existing scale payable to the High Court employees, if 23% is added to the Basis Pay, the total emoluments received by the employees of the other High Courts will be all far above the total amount received by the employees of this Court. Over and above, the employees of the other High Courts are enjoying different types of allowances such as Transport Allowance, Children's Education Allowance etc. By way of illustration, we give the following chart showing the gross salary received by the employees of the other High Courts:
GROUP- 'D' PEON/FARASH,SWEEPER/MALI etc. As per report of the Administrative-Members Actual figure based on proper Calculation Basic Basic Gross (after taking into account all allowances) {Pay in the P.B. (Unrev.Basic x 1.86) + G.P.} Madras 6100/- 6100/- 12445/-
Allahabad 5740/- 6043/- 12351 (12401/-)
Gujarat 6100/- 6043/-, 6155/- 12351 (except C.L.A.), 12536
Rajasthan 6050/- *** ****
Bombay 5740/- 6155/- 12536/-
Calcutta 6600/- 6741/- 9872 (existing)
Delhi *** 7952/- 15501/-
Group- 'C'
L.D.A./Typist/D.E.O./Telephone Operator
Madras 7400/- 8943/- 18216/-
Allahabad 8000/- 11170/- 20240/-
Gujarat 7100/- 7573/- 15956/-(except C.L.A.), 12536
24
Rajasthan 7600/- *** ****
Delhi 13500/- 14430/- 27270/-
Calcutta 9170/- 9170/- 13322/-
Patna *** 14830/- 25470/-
U.D.A./Translator etc.
Allahabad 13500/- 16690/- 29222/-
Rajasthan 12900/- *** ****
Delhi 13900/- 16690/- 30999/-
Calcutta 11510/-+S.A150-200 11510/-(S.A. only 16645/-
For three employees
(Allowances payable to the employees of Rajasthan High Court are not available) Group - 'A' Assistant Registrar Madras 22200/- 25200/- 47200/-
Bombay 22200/- 25200/- 47200/- Allahabad 22200/- 25200/- 44530/- Delhi 23200/- 29920/- 54988/- Calcutta 22570/- 22570/- 32350/-
It is, therefore, clear from the above chart that views expressed by the Administration-Members of the Commission that the employees of the High Court of Calcutta are enjoying higher scale of pay than those given to the employees of some other High Courts is although factually correct, yet, if we take into consideration the various allowances payable to the employees of those High Courts, the gross emoluments received by the employees of this Court are shockingly lower than those received by the employees of the other High Courts.
In course of discussion, the Administrative-Members of the Commission were of the view that at any point of time, having regard to the fund position of exchequer, the State Government may 25 sanction higher amount of Dearness Allowance but the State Government cannot make any differential treatment for the High Court employees in the matter of payment of Dearness Allowance and House Rent Allowance thereby allowing the different rate of Dearness Allowance and the House Rent Allowances for them.
We are of the opinion that if the State Government does not want to make any differential treatment for the High Court employees in the matter of payment of Dearness Allowance and House Rent Allowance, in that event, the proposed scales suggested by us in Annexure-"IV" of this Report should be accepted. On the other hand, if the State Government is ready and willing to confer the rate of Dearness Allowance, House Rent Allowance and other allowances at par with those pay able by the Central Government, we have no objection in maintaining the existing scales of pay, as indicated in the interim report dated 23rd April, 2009 which is annexed to this Report as Annexure-"A" with the above variations.
The scales proposed by us, as indicated in Annexure-"IV" hereto, are in may respects lower than those payable to the employees of the Delhi High Court whose workload is one-seventh of the workload of this Court. In addition to such scales, the employees of the Delhi High Court enjoy Dearness Allowance, House Rent Allowance, Transport Allowance and other allowances payable at par with those enjoyed by the Central Government employees.
The principle of equal pay for equal work does not mean equal scale of pay for equal work but it means equal total amount of service benefits conferred upon an employee doing equal job. Therefore, in order to apply the said principle all that is necessary is that the gross salary of the employee doing same type of work should be the same. As members of the Pay Commission we should take into account the total remuneration received by the other High Court employees in India doing similar job and not the scale payable by some other High Courts by reducing the Dearness Allowance and House Rent Allowance payable to them to the extent of 23% of the Basic Pay. Our aforesaid view finds support from the observations of the Supreme Court in the very first paragraph of the judgment in the well-known case of Frank Anthony Public School Employees' Association Vs. Union of India and others reported in AIR 1987 SC 311.26
The Administrative-Members of the Commission were further of the view that as on the last occasion while revising the pay scale of the High Court employees in the year 1996, the recommendation payable to interfered by the Supreme Court, the existing remuneration payable to this Court's employees should be held to be just ad proper. With great respect to the Administrative-Members, we are unable o concur with the said view. The Supreme Court in that case was making judicial review of the recommendation of the last Pay Commission bearing in mind that in exercise of such power of judicial review, the Court does not interfere with the discretion exercised by the Pay Commission unless it is perverse. Our role at this stage is, however, that of a Pay Commission whose duty is to assess the value of the work done by the concerned employees in the light of the remuneration received by other similar employees in this country ad also to see whether this premier High Court will be able to function properly unless it is equipped with the employees of the same standard who run the other High Courts of the country. Therefore, the mere fact that the employees of this High Court in the past did not get equal amount of remuneration available to their counterpart of other High Courts, by itself, will not justify perpetual denial of just amount of pay eve at the instance of the Pay Commission constituted for a subsequent period.
We have already pointed out that in course of last 10 years, there has been huge accumulation of cases whereas the increase of number of employees is meagre and that there should be more or less the same amount of emoluments payable to all the employees of the High Court throughout the country who are doing practically the same type of job and therefore, their scales of pay and other service benefits cannot be compared with that of ordinary State Government employees. We also tried to convince the Administrative-Members by giving reference to the fact that the State Government itself has accepted the position that the nature of job performed by different classes of employees cannot be same with that of the State Government employees. For the above reason, the State Government itself has accepted the remuneration of the employees of the various Universities at the rates, which are consistent with the University employees throughout India and such rates of scale of pay are 27 definitely higher than those enjoyed by the corresponding State Government employees.
There is no reason why the same principle will not be applicable to the High Court employees throughout India who perform the same nature of job.
In our opinion, if the existing emoluments continue, in a near future, for dearth of efficient employees, it will be impossible to carry out the function of the High Court enjoined by out Constitution.
We, therefore, propose the scales of pay for the employees of the Calcutta High Court as mentioned in Annexure-"IV" to this Report if the rate of Dearness Allowance and the House Rent Allowance are conferred at par with the State Government employees. However, if the State Government decides to confer Dearness Allowance, House Rent Allowance, Transport Allowance, Children's Educational Allowance, etc. at the same rate as are admissible to the Central Government employees, we are ready to accept the existing scales as per interim report of this Commission dated 23rd April, 2009 subject to our recommendation of promotion to the Data Entry Operators on non-functional seniority basis as indicated at page 2 of this Report. In addition to the aforesaid scales, the employees would also be entitled to the other benefits as mentioned in Annexure-"B" to the main Report of the Commission on which there is unanimity among all the members.
An Anomalies Committee be constituted by the Hon'ble Chief Justice to remove any anomaly that may surface in giving effect to and implementing the recommendations which are accepted.
(Bhaskar Bhattacharya, J.) (Pinaki Chandra Ghose,J.) (Kalidas Mukherjee, J.) (Quoted) 28 So far as Annexure- IV is concerned and which is a comparative table of the scales of the Calcutta High Court and other High Courts are placed between pages 210 to 218 of the Writ Petition and it also gives suggestions of the new nomeclatures to be give to the different posts carrying different scale of pay.
11. Upon a perusal of the aforementioned Reports, it would be evident that the Judicial Members had undertaken Herculean efforts and had finally attempted to set at rest the growing unrest amongst the employees of the Calcutta High Court by making recommendations and suggesting that an Anomalies Committee could be constituted by the Hon'ble Chief Justice to remove any anomaly that may surface in giving effect to and implementing their recommendations.
12. It would also be necessary to notice what the Administrative Members said while recording their dissent on the same day.
Their views are between running pages 219 to 221 of this Writ Petition. The same reads as follows:-
Views of the Administrative Committee Members Annexure "D"
Revision of Pay Scale of High Court Employees After examining the pay scale of the employees of the premier High Courts of the Country, it has come to the notice that the employees of Calcutta High Court are in better position as regards entry-point basic pay in most of the categories of posts.29
1.1. in case of common category Group 'D' posts like Peon/Farash, Sweeper, Mali etc. the revised basic pay except in Delhi High Court & Sikkim High Court (minimum basic pay: Rs. 7,200/-), in all the High Courts, the minimum basic pay is lower than the minimum basic pay of the Calcutta High Court.
Madras High Court -Rs. 6,100/-
Allahabad High Court -Rs. 5,740/-
Gujrat High Court -Rs. 6,100/-
Rajasthan High Court -Rs. 6,050/-
Bombay High Court -Rs. 5,740/-
Calcutta High Court -Rs. 6,600/-
1.2 In case of common category Group C posts like
LDA/Typist/Data Entry Operator/Telephone Operator revised basic pay at the entry level in different High Courts are as follows:
Calcutta High Court -Rs. 9,170/-
Madras High Court -Rs. 7,400/-
Allahabad High Court -Rs. 8,100/-
Gujrat High Court -Rs. 7,100/-
Rajasthan High Court -Rs. 7,600/-
Delhi High Court -Rs. 13,500/-
1.3 In case of posts of UDA/Translator etc. revised basic pay at the minimum level is as under:
Calcutta High Court -Rs.11,510/-+S.A.Rs.150/-to Rs.200/- Allahabad High Court-Rs. 13,500/-
Rajasthan High Court-Rs. 12,900/-
Delhi High Court -Rs. 13,900/-
1.4 In case of Assistant Registrar
Calcutta High Court -Rs. 22,570/-
Madras High Court -Rs. 22,200/-
Bombay High Court -Rs. 22,200/-
Allahabad High Court -Rs.22,200/-
Delhi High Court -Rs. 23,200/-
From the comparative study, it cannot be said that the scales of pay of the employees of the Calcutta High Court are lower than the major High Courts of the country.
When pay scale is determined total monthly emoluments received by an employee on the basis of admissible allowances like 30 dearness allowance, house rent allowance should not be a factor. At any point of time having regard to fund position of the State exchequer, the State Government sanctions dearness allowance in favour of all the employees for whom it bears expenditure towards dearness allowance keeping a aim to making the rate of dearness allowance at par with that of GOI. The State Govt. cannot make any differential treatment for the High Court employees in the matter of payment of dearness allowance and house rent allowance allowing the employees of High Court at different rate and at different time.
On the last occasion when 1998-ROPA was extended to the High Court employees, the High Court Employees' Association demanded high pay scales on the basis of report of the Hon'ble Full Court's recommendations. When the State Govt. did not accept the said Report, the demand was raised for additional two increments after fixation of pay of the employees. The State Govt. had to fight a prolonged legal battle in the Hon'ble Supreme Court for disallowing the claims.
Hon'ble Apex Court did not allow the benefits of addl. Increments. For settlement of the issue we allowed higher initial or Special Allowance (SA) to the employees after much deliberations.
With due consideration of nature of duties and responsibilities being performed by High Court employees (from Group 'D' upwards) the pay scales of all categories of High Court employees have been revised upwards through the High Court employees (Appellate Side and Original Side) (Revision of Pay and Allowance) Rules, 2007, which was ratified by the Hon'ble Supreme Court by way of allowing higher initial start in some cases and by allowing Special Allowance in some other cases. So further upward revision of pay scales in case of High Court employees is not acceptable at this stage.
This time the pay-structure suggested by the Special Pay Commission in its interim Report for the employees of the High Court was accepted by the Government.
We are not in favour of any further enhancement of pay scales over and above what had been agreed to by us. We propose that in case of Common Category posts the recommendation of the 5th Pay Commission may be taken into account.
In other High Courts 'Secretariat Allowance' is paid to the employees. It is suggested instead of Special Allowance (SA), which is being proposed to be allowed to the employees of the High Court, the 31 nomenclature "Special Allowance" be changed into "Secretariat Allowance" for doing special type of duty in the High Court.
It has been suggested that the amount of 'Secretariat Allowance' (SA) may be enhanced suitably. In case of proven hazard in performing duties 'Hazard Allowance' in lieu of 'SA' may be allowed.
In most of the cases it has been suggested that the rate of S.A. be enhanced having regard to the duties and responsibilities of the post.
A revised pay-structure for the High Court employees which may be allowed by the Govt. is given herewith for consideration of the Special Pay Commission.
(Ananda Gopal Ghosh) (Swapan Kumar Chattopadhyay) Member (A), Special Member (A), Special Pay Pay Commission Commission Annexure "D"
Views of the Administrative-Members of the Commission Sl. Items Proposed by the Government view No. Committee 1 Uniform For security of Agreed in principle.
Allowance personnel Rs. Modalities to be
Request from 6,000/- p.a. of worked out
Police the Hon'ble High
Court.
Washing
allowance to Gr.D
Rs. 100/- p.m.
2 Transport Rs. 1,500/- p.m. No Transport
Allowance Allowance has been
recommended by
the 5 th Pay
Commission ad the
State Govt.
employees do not
get the benefit.
We may not agree.
3. House Rent 30% 15% as allowed to
32
Allowance State Govt.
employees.
4. L.T.C. Once in 4 years 3 times in service
life as
recommended by
the 5th P.C. for State
Govt. employees.
5. Dearness At the rate as At the rate as
Allowance enjoyed by enjoyed by the State
employees of Govt. employees.
Delhi High Court
6. Arrear w.e.f. 01.01.06 at w.e.f. 01.04.08 in
a time in cash three yearly
instalments.
7. Ratio of As Applicable to We may have no
promotional State Govt. objection
benefits employees and as
are in existence.
8. Mediclaim As introduced for We may have no
facility State Govt. objection if similar
employees. The scheme is extended
Cabinet has been to the H.C.
moved for Employees. The
delegation of Cabinet has been
financial power to moved for
the Registrar delegation of
General of the financial power to
Hon'ble High the Registrar-
Court. General of the
Hon'ble High Court.
9. Children Rs. 1000/- per We may not agree
Education child maximum 2 as the same are not
children + Hostel available to State
subsidy Rs. Govt. employee.
3000/- per child
which to be
raised by 25%
when D.A. goes
up by 50%.
33
10. Career As are applicable No objection
Advancement to State Govt.
Scheme employees
11. Additional Already conveyance
Actual charge on
conveyance weekdays allowance has been
and
allowance to holidays allowed for such
P.As. purpose. So no
further change may
be approved.
However, we may
allow actual mileage
allowance but fixed
allowance already
allowed, then will be
discontinued.
12. Other benefits To be extended to No objection
as are in High Court
WBS(ROPA), employees
2009
13. Other benefits To be extended to No objection
as are in High High Court
Court employees employees
ROPA, 2007
(Quoted)
13. According to the Petitioners, the Administrative Members failed to justify their dissent without assigning any valid and justifiable reasons except making routine, mechanical observations to the effect that acceptance of the recommendations made by the members being the majority members (i.e. the three Hon'ble Judges of the Calcutta High Court) would have the consequence of imposing additional financial load and/or burden on the State Government. According to the Petitioners, such views cannot be said to be either fair or rational or reasonable.
34
14. On 4.11.2010, the Officer on Special Duty-cum-
ex-officio Special Secretary, Department of Finance, Government of West Bengal sent a letter to the Registrar General wherein, while referring to the Report of the Special Pay Commission and also while referring to the subsequent discussions, it was informed that the revision of pay scales as suggested by the Judicial Members of the Special Pay Committee cannot be accepted by the Government because their suggestions of revision will "create repercussions elsewhere". In the said letter, he attempted to indicate that the final reports submitted by the Special Pay Commission "reveals a huge structural difference in the pay and allowances in each and every category of posts."
15. By reason of the aforementioned letter, the Officer- on-special duty informed that after discussions, the Government had reviewed the matter and the State Government had decided to recommend "additional benefits" for different categories of employees to be termed as "High Court Duty Allowance". He further stated that the final pay structure and High Court Duty allowance may be approved and after approval of the Hon'ble Chief Justice, a draft pay rule be sent for vetting by the Government. It is stated that the Chief Justice had subsequently recorded his dissatisfaction considering the meagre amount suggested by way of "High Court Duty Allowance" and by letter dated 9.11.2010, the Registrar General wrote to the Officer-on-special duty-cum-ex- officio Secretary, Department of Finance informing him about the dissatisfaction of the Chief Justice. He also therefore conveyed the Direction of the Hon'ble Chief Justice for reconsideration by the Government of the recommendations of the 35 Judicial Members so as to reasonably increase the pay and allowances, taking into consideration the recommendation of the Special Pay Commission in comparison to the pay and allowances of other High Courts in the country so that the exercise undertaken by the Special Pay Commission was considered in a meaningful and effective manner and which would benefit the administration of justice in the State of West Bengal.
16. It appears that thereafter, the Minister-in-charge, Finance and Excise wrote to the Chief Justice informing him that "we have tried out best to extend, over and above the State's recommendations in the interim report, further benefits to the employees of Hon'ble High Court in the form of High Court Duty Allowance. Given the financial limitations of the State Government, this additional accommodation of benefits is what is feasible at this point of time. I sincerely hope that you will kindly understand our position." (Quoted from Annexure- P/5). In other words, finality to the "High Court Duty Allowance was sought to be given.
17. Based on the aforementioned set of facts, the Petitioners filed this Writ Petition when they felt aggrieved by the action on the part of the State Government in not implementing the recommendations of the Special Pay Committee and also by their further action in suggesting a "High Court Duty Allowance".
Let it be recorded at this stage that the entire Calcutta High Court employees of all the four categories referred to above, went on strike from 22.9.2010 to 29.9.2010 thereby completely paralysing the High 36 Court. In fact even the Judges of this Court were unable to enter their chambers as the buildings were closed and not a single Orderly or Peon or P.A. was available to assist the Judges to carry on with their judicial work.
18. The strike was called off on 29.9.2010 and the annual long vacation of the Calcutta High Court started on and from 7.10.2010. In other words, the entire judicial work was completely disrupted for six days. The Court reopened on and from the 8th of November, 2010 and this Writ Petition came to be filed on 22.12.2010.
19. An Affidavit-in-opposition has been filed on behalf of the Respondent Nos. 1 and 3 (the State of West Bengal through the Department of Finance and Swapan Kumar Chatterjee, Administrative Member of the Special Pay Commission respectively). Let it be recorded that the Affidavit-in- opposition has also been sworn by Swapan Kumar Chatterjee himself.
20. In the Affidavit-in-opposition, it has been stated that the members of the Writ Petitioner No. 1 (Association) are guided by "The Calcutta High Court Service (Conditions of Service and Recruitment) Rules, 1960" which enjoins that the provisions of the West Bengal Service insofar as they relate to salary, allowances shall apply to the members of the High Court Service as they apply to the State Government employees of the corresponding classes and therefore, pursuant to the said provisions, they were brought within the purview of all the three earlier Pay Commissions and in all of them, the Hon'ble Chief Justice of the Calcutta High Court had agreed to implement the recommendations of the Pay Commissions in respect of Pay and Allowances and 37 other benefits. It has further been stated that pursuant to a direction made by the Supreme Court in W.P. (C) No. 134 of 1999, a Special Pay Commission was constituted. When the 5th Pay Commission was constituted for examining the structure of pay and allowances and conditions of service and other related issues of the State Government employees, teaching and non-teaching employees of the Government, aided educational institutions, statutory bodies and PSUs, the employees of the Calcutta High Court were also included within the purview of consideration of the said 5th Pay Commission with prior consultation of the Chief Justice but after formation of the Special Pay Commission in terms of the Judgment of the Supreme Court, the State Government decided to withdraw the employees of the Calcutta High Court from the purview of the 5th Pay Commission but the recommendations of the Pay Commission were adopted as an interim arrangement till finalization and implementation of the Special Pay Committee's recommendations.
21. It has further been stated that unlike the previous interim report, the final report which was submitted by the Special Pay Commission did not reflect any consensus amongst the members of the Commission so much so, that there existed difference of opinion with regard to the service benefits which resulted in the submission of a separate report by the three judicial members and another, by the two administrative members.
22. According to the deponent of the said opposition, the judicial members appear to have "inadvertently missed the fact" that suggestion for revision of pay of the employees under ROPA 2007 had already 38 been made and therefore, there was no need for recommending for a further revision in their pay structure inclusive of the Band Pay and the Grade Pay. According to him, the judicial members have worked out a formula which almost amounts to "double revision" on the basis of their proposals, while on the other hand, the administrative members have suggested revised scales of Band Pay and Grade Pay keeping in view the enhanced scale under ROPA 2009.
23. He has further stated that while the judicial members suggested that the scale of Group-D post be first revised in the unrevised Scale No. 5 (Rs. 3150-5680) and thereafter be put into the revised Pay Band No. 2 with a Grade Pay of Rs. 2300/- with a Basic Pay of Rs. 8100/-, the administrative members, on the other hand, suggested that the Basic Pay of Group-D employees of the High Court would be at Rs. 6750/- under ROPA 2007. Similar pay structure on the basic grade posts of Group-C employees was suggested by the administrative members at Rs. 9170/- whereas the judicial members suggested the minimum basic pay in the revised pay structure at Rs. 12,750/-.
24. In paragraph-4 (l), this deponent has stated that although the judicial members have elaborately discussed the onerous jobs and duties performed by Group-C , D and other category of employees of the High Court, no observations or comparative estimate with regard to the nature of the job performed by their counterparts in the State Government was made so as to justify the disbursement of additional benefits and relief to the High Court employees.
39
This deponent has further stated that the administrative members have suggested that the "sufferings" of the Group-D employees could be mitigated by augmenting some infrastructural and manpower facilities such as sanction of lifts, providing of trolleys and filling up posts, if necessary.
25. In paragraph-4(m), the deponent has stated that the Government is ready to disburse the benefits of Dearness Allowance, House Rent Allowance at par with the rate of the Central Government employees without creating any disparity with the State Government employees but sanctioning of educational allowances and transport allowances for the High Court employees would have a disastrous consequence on the total financial system of the State Government and it would pave the way for creating similar demands of similar nature under the State Government which would be difficult for the said Government to resist. He has also stated that the Basic Pay in the revised pay structure for employees of this Court as would be evident from Annexure-P and as agreed upon by the Government in the interim report was, by and large, higher than the Basic Pay prevailing in the other High Courts of the country.
26. In paragraph-4(o), the deponent has stated that it is a settled law that fixation of pay and determination of parity is a responsibility which is required to discharged by the Executive and the Governor's approval is required Article 229(2) of the Constitution and therefore, the Government is well within its rights to examine the total financial implications because any 40 additional benefits or higher scales of pay would not only have a "cascading effect" on the economic scenario of the State but it would also "ruin" the exchequer and all expenses towards development would have to be curtailed and development projects would come to a standstill.
27. In paragraph 4(q), this deponent has gone ahead by stating it is for the Executive to consider the paying capacity of the government and also the financial burden to be borne by the general public while taking steps for giving effect to the recommendations. He has further stated that the Executive has to look into the rising level of disparity in income and also to ensure that there is an adequate amount of resources left with the Government to complete the assignment on the basis of priorities.
He has also stated that the members of Pay Commission have equal responsibility to consider various parameters for fixing pay scales and as such, the administrative members are neither less qualified nor less competent to understand the nature of the jobs and equivalence of different categories of employees in the High Court vis-à-vis the State Government employees.
28. Having said so, this Respondent has generally denied the statements made in the Writ Petition and has also denied the suggestion that the gross salary of the employees of the Officers and staff of the Calcutta High Court is, perhaps, the lowest.
29. He has however, also stated that it cannot be denied that the judicial members possess special expertise and comprehensive 41 experiences as well as in-depth knowledge with regard to the nature of duties and responsibilities of all categories of employees but the administrative members, at the same time, are also aware of the duties and responsibilities of the said employees. He has further denied that the administrative members have reflected a bias ("predilection in administrative penchant") in understanding the quality of duties and responsibilities. He has also denied that the administrative members have failed to justify their dissent without assigning any valid reasons or have made mechanical objections by raising the plea of additional financial burden. He has once again repeated that the administrative members have disagreed with the judicial members in the final report as it reflects huge structural difference between the pay scale of State Government employees and the High Court employees which would not only create a financial burden on the Government but would also lead to the creation of unnecessary demands amongst State Government employees which would pose serious difficulties for the administration.
It is his further statement that the administrative members have objected to the proposal of increase of pay scales because it amounts to "double revision", and sanction of additional benefits like Child Education Allowance and Transport Allowance would ultimately create a chaotic situation not only in the administration but would also have a negative effect on the economy. Consequently, the State Government reviewed the entire matter and with a view to mitigate the sufferings of the employees and fulfilling their long standing demands, decided to recommend additional benefits of Child 42 Education Allowance and Transport Allowance by nomenclating the same as "High Court Duty Allowance" which was neither accepted by the Petitioners nor approved by the Hon'ble Chief Justice.
30. In paragraph-8, this deponent has denied that the state Government, represented by the administrative members, intentionally tried to ignore their constitutional obligations or showed disregard to the judicial members. The administrative members only tried to "voice the predicament of the Government in respect of the financial implications and the practical difficulties which the Government may have to face."
31. Apart from the aforementioned statements it is generally denied that the administrative members have tried to bypass the recommendations of the judicial members and that they have only made efforts to uphold the sanctity of the Constitution and the Directions passed by the Supreme Court of India.
32. The Registrar General of the Calcutta High Court, in the Affidavit-in-opposition filed on behalf of the Respondent No. 2 (the Calcutta High Court) has stated that the Hon'ble Chief Justice was not inclined to accept the recommendations of the 4th Pay Commission made in the year 1996. It was then that the Chief Justice constituted a Special Pay Commission for the employees which submitted a report. He has repeated the history of the case which led to the filing of W.P. (C) No. 134 of 1999 before the Apex Court. He has also repeated the observations made by the Hon'ble Supreme Court and has further stated that the facts which led to the filing of the report by the Special 43 Pay Commission. He has also repeated what happened after submission of the report and in paragraph-4(g), he has submitted that "it is unfortunate that the State Government having due regard to the observation made in the Judgment of the Hon'ble Apex Court dated 18th November, 2003 did not make such efforts is required to work out an appropriate formula in regard to Pay-Scales to be fixed for the employees of this Hon'ble Court. The said Order of the Hon'ble Apex Court makes it clear that fixation of the appropriate scales of pay for the employees of the High Court cannot be denied on the alleged plea of inability to bear the financial burden." [ Quoted from Para-4(g) ]
33. He has also generally given the brief history of whatever happened after submission of the report but in para-6, it has been stated that "the object and purpose for constitution of this Special Pay Commission with the Hon'ble Judicial Members and the Administrative Members in terms of the solemn direction of the Hon'ble Apex Court have been rendered nugatory upon taking unilateral decision to grant 'High Court Duty Allowance' without arriving at the appropriate formula to fix the pay-scales of the employees of this Hon'ble Court." [ Quoted from para-6 ]
34. The Petitioners have objected to the swearing/filing of the Affidavit-in-opposition by the Respondent No. 3 himself (Swapan Kumar Chatterjee). They have said so in their Affidavit-in-reply to the Affidavit-in- opposition of the Respondent Nos. 1 and 3. In Para-4, they have stated that the said Affidavit-in-opposition having been sworn/affirmed by the said Respondent No. 3 cannot be treated to be an Affidavit-in-opposition reflecting the stand of the 44 State as it has not been affirmed by the State of West Bengal. They have also stated that the said opposition has evaded contentious issues raised in the Writ Petition and therefore, no credence should be given to the said opposition of Swapan Kumar Chatterjee (Respondent No. 3).
35. The Petitioners have also stated that the answering Respondent has totally misconstrued the report of the judicial members of the Special Pay Commission. According to them there has been, "no double revision on the basis of the proposed revised scale as alleged. The Report of the Hon'ble Judicial Members of the Special Pay Commission proposes advancement in the same Scale of Pay and revision thereupon on the basis of evaluation of nature and volume of the employees of this Hon'ble High Court. The answering Respondent are estopped from challenging the fixation of pay as made by the Hon'ble Judicial Members of the Special Pay Commission, since at the time of deliberations on the issue they had accepted the suggestion of granting additional increments in the unrevised pay scale and fitment thereof in the revised pay as proposed by the Government." [Quoted from Para-8]
36. They have also stated in Paragraph-11 that "the Report of the Administrative Members no where records the Government's readiness to disburse the benefits of DA & HRA at the Central Government's rates to the employees of this Hon'ble High Court. Even otherwise the averments made in the paragraph under reply is illusory and misleading inasmuch as it purports to confer such benefits of DA & HRA at the Central Government rate to the High Court employees without creating any disparity with the employees of the State 45 Government, when the answering Respondents have their eyes wide open and are aware of the fact that such allowances and benefits of the State Government employees are not at par with the Central Government employees. The contention of the State Government to meet with the demand of education and transport allowance from other corners is hypothetical and presumptive. In any event the State Government cannot deny the rightful dues in the matter of pay fixation on the ground of financial incapacity." [Quoted from Para-11]
37. They have further denied in Paragraph-13 that the "granting of higher scale of pay as recommended by the Hon'ble Judicial Members would have a cascading effect on the total economic scenario of the State as alleged or at all." [Quoted from Para-13]
38. In Paragraph-14, the Petitioners have submitted that "the State Government is seeking to negate the expert views and majority opinion of the Special Pay Commission which had been constituted in terms of the Order passed by the Hon'ble Supreme Court of India. The State Government had accepted the constitution of the Committee and as such the expert views and majority opinion of the Special Pay Commission based upon objective consideration and in depth analysis of the nature and volume of works performed by the employees of this Hon'ble Court is binding on the State Government." [Quoted from Para-14]
39. In Paragraph-16, the Petitioners have denied that "there has been double revision or that sanction of additional benefits like Children Education Allowance and Transport Allowance would create a chaotic situation in 46 administration or will have a nugatory effect in the economy in general as alleged." [Quoted from Para-16] They have further stated that "financial incapacity of the State Government is not a good ground for denying the financial benefits to the employees of this Hon'ble High Court. In any event the answering respondents have not answered the questions as to how better benefit and scale of pay was granted to the employees of Jadavpur University and Kalyani University. It is furthermore stated that the State Government had also increased the pay of the Para Teachers in school and of the police personnel at rates which are almost double the earlier rates." [Quoted from Para-16] Discussion
40. The learned Advocate General has appeared in this case and he has strongly defended the action of the State. His argument is that the Order of the Supreme Court which has been heavily relied upon by the Petitioners relates to the 4th Pay Commission and has got nothing to do with the 5th Pay Commission. He further states that the aforementioned Order of the Supreme Court which has been relied upon by the Petitioners being the Order dated 18.11.2003, was actually an interim Order passed by the Supreme Court which was finally disposed of on 9.1.2007.
While the interim Order dated 18.11.2003 is reported in (2004) 1 SCC 334, the final Order dated 9.1.2007 is reported in (2007) 3 SCC 637. According to the learned Advocate General, the interim Order thus came to an end by final disposal of the Writ Petition on 9.1.2007 and 47 therefore, the earlier Order dated 18.11.2003 (Annexure-P/1) lost its significance and has no relevance to the subject matter of the present Writ Petition. He submits that upon a perusal of the final judgment itself, it would be evident that the case which was before the Supreme Court was totally different and based on separate set of facts and therefore, these Petitioners cannot be allowed to capitalize on the said Order dated 18.11.2003.
41. The learned Advocate General, while stretching the aforesaid point, argues that since the Writ Petition before the Supreme Court was finally disposed of on 9.1.2007, therefore, the Direction of the Chief Justice to constitute a Special Pay Committee in the year 2008 was a suo motu administrative decision which cannot be linked to the Judgment of the Supreme Court passed on 18.11.2003. He refers to a Judgment of the Supreme Court passed in the case of Prem Chandra Agarwal and Another vs. Uttar Pradesh Financial Corporation and others reported in (2009) 11 SCC 479 for the contention that it is a well settled principle that once a final Order is passed, all earlier interim Orders merge into the final Order and the interim Orders cease to exist. He submits that consequently any Direction that may have been given in the interim Order will also cease to exist. He submits that consequently, the Petitioners cannot be allowed to say that their right flows from the Order of the Supreme Court passed on 18.11.2003 as was argued by the learned Counsel for the Petitioners. He relies upon paragraph-29 of the final Judgment of the Supreme Court reported in (2007) 3 SCC 637 and which says "we also find no basis for the assumption that all categories of employees in the High Court are 48 discharging more onerous function than their counterparts in the State Government, and all High Court employees without exception, should therefore receive a higher pay than their counterparts in the State, even in the absence of any general or special reasons. Determination of parity or disparity in duties and responsibilities is a complex issue and we do not propose to enter upon it. Suffice it to say that the Special Pay Commission had identified the posts which require additional benefits and additional relief has accordingly been granted to them. What has not been agreed is a general stepping up of pay for all existing employees." [Quoted from Para-29 of the Judgment of the Hon'ble Supreme Court]
42. Learned Advocate General submits that after disposal of W.P. (C) No. 134 of 1999 by the Supreme Court on 9.1.2007, the Calcutta High Court (Appellate Side and Original Side) Services (Revision of Pay and Allowances) Rules, 2007 were framed and the said Rules, by reason of Section 1(ii) were "deemed to have come into force on the 1st day of January, 1996." He submits that these Rules were sent at a draft stage to the Secretary to the Government of West Bengal, Judicial Department, by the Registrar General after making all corrections therein on 21.2.2007. It appears that the Governor of the State of West Bengal gave his approval to the said Rules and it was communicated to the High Court vide letters dated 21.5.2007, 31.1.2007 and 12.2.2007. It was thereafter that the Rules were published and it was to regulate the pay and allowances payable to the Officers and employees of the High Court retrospectively w.e.f. 1.1.1996. The said Rules and the notes of the Registrar 49 General-in-charge were produced by the learned Advocate General and this Court has therefore, noticed the same.
43. According to the learned Advocate General, once these Rules came into existence, the subject matter of the Writ Petitions which were pending before the Supreme Court being W.P. (C) No. 134 of 1999 came to an end and once the aforementioned Rules came into force, the employees came to be governed by the said Rules and therefore, the Chief Justice of this Court, even with the best of intentions, acted wholly without jurisdiction when he proceeded to constitute a Special Pay Committee without there being any further or fresh Order of the Supreme Court after 9.1.2007.
44. Learned Advocate General further argues that the High Court Employees were included for consideration in the 5th Pay Commission but since the Chief Justice wanted a Special Pay Committee, the Government therefore, withdrew the matter from the purview of the 5th State Pay Commission and this therefore, has led to all the problems. The 5th Pay Commission Report was placed for perusal before this Court and a letter of the Deputy Secretary to the Govt. of West Bengal addressed to the Chairman, 5th Pay Commission was shown in support of the aforementioned submission. The said letter as follows:-
Government of West Bengal Finance Department Adult Branch No.103-F From : B. Lahiri Deputy Secretary.50
To : The Chairman, 5th Pay Commission Tantuja Bhavan, Salt Lake, Kolkata- 700091.
Dated Kolkata, the 5th Janauary, 2009 Sir, I am directed to say that a Special Pay Commission has since been constituted for examining the pay structure emoluments of High Court employees including the employees of High Court Guest House and west Bengal Judicial Academy comprising the Hon'ble Justice Bhaskar Bhattacharyya, the Hon'ble Pinaki Chandra Ghosh, the Hon'ble Justice Sailendra Prasad Talukdar and two Administrator/Members namely Sri S. K. Chattopadhyay, Special Secretary, Finance Department and Shri Ananda Gopal Ghosh, Special Secretary, Home Department.
I am accordingly directed to request you that the employees mentioned above, who were earlier included under the terms of reference of the Pay Commission in terms of Finance Department Memo. No.8906-F dated 24th November, 2008, may now he treated as excluded from the terms of reference.
All concerned are being informed.
Yours faithfully, Sd/- B. Lahiri.
Deputy Secretary to the Government of West Bengal.
No. 103/1(2)-F dated, the 5th January, 2009 Copy forwarded for information to:-
1) The Judicial Department, Writers' Buildings, Kolkata-1
2) The Registrar General, High Court, Calcutta Deputy Secretary to the Government of West Bengal (Quoted)
45. The other point argued by the learned Advocate General is that the Association has no legal right to maintain the present Writ 51 Petition inasmuch as Rule 23 of the aforementioned Rules clearly lays down that the provisions of the West Bengal Service Rules, insofar as it relates to salary, leaves and allowances, shall apply to the members of the High Court Services being Class-I, II, III and IV employees in the same manner as they apply to Government servants of corresponding classes in the service of the Government of West Bengal.
46. This point however, is not acceptable to this Court inasmuch the Association is a registered association which looks after the welfare of the employees of the High Court and therefore, even if it does not have an individual interest, it is certainly a "person interested" and therefore, a Writ Petition, at the instance of such an Association, is maintainable. In this context, reference may be made to a judgment of the Supreme Court passed in the case of Fertilizer Corporation Kamagar Union (Regd.) Sindri & Ors. Vs. Union of India & Ors. reported in AIR 1981 SC 344. His Lordship, the then Chief Justice of India, Hon'ble Mr. Justice Y.V. Chandrachud, for himself, and on behalf of their Lordships Hon'ble Mr. Justice S. Murtaza Fazal Ali and Hon'ble Mr. Justice A.D.Koshal has held in Paragraph-23 thereof, while dealing with the point of maintainability, as follows:-
"That disposes of the question as regards the maintainability of the Writ Petition.
But we feel concerned to point out that the maintainability of a Writ Petition which is correlated to the existence and violation of a fundamental right is not always to be confused with the locus to bring a proceeding under Article 32. These two matters often mingle and coalesce with the result that it becomes difficult to 52 consider them in watertight compartments. The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Art. 226 or under Art. 32 of the Constitution...........".
In the same Judgment, the Hon'ble Mr. Justice V.R. Krishna Iyer for himself and on behalf of the Hon'ble Mr. Justice P.N. Bhagwati, held in Paragraph-48, that "if a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the Court will not be ajar for him. But he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justifiable may still remain to be considered. I, therefore, take the view that the present Petition would clearly have been permissible under Article 226."
47. In another Judgment passed in the case of Akhil Bharatiya Soshit Karamchari Sang (Railway) represented by its Assistant General Secretary on behalf of the Asson. etc. Vs. Union of India & Ors. reported in AIR 1981 SC 298, their Lordships have held in paragraph-63 as follows:-
" A technical point is taken in the counter-affidavit that the 1st petitioner is an unrecognised association and that, therefore, the petition to that extent, is not 53 sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Art. 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-
based and people-oriented, and envisions access to justice through 'class actions', 'public interest litigation', and 'representative proceedings'. Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney General has taken no objection to a non-recognised association maintaining the writ petitions."
The redeeming features in this case is that the Petitioner is a recognised registered association and the learned Advocate General, in this case has taken the objection that such an association cannot maintain the Writ Petition. In view of the aforementioned judgments, this objection of the learned Advocate General is not acceptable to this Court and it is accordingly rejected.
48. Learned Advocate General has submitted that since the Committee framed by the Hon'ble Chief Justice was done without any authority and without jurisdiction, the recommendation made by the Committee cannot be enforced. In the context of the aforementioned objections and in the 54 context of the learned Advocate General having drawn the attention of this Court to the final Judgment passed by the Supreme Court and as reported in (2007) 3 SCC 637 and the consequential point having been developed by him that the action of the Chief Justice in setting up a Special Pay Committee was wholly without jurisdiction, this Court, in that background, would now like to refer to the provisions of Article 229 of the Constitution of India. The same reads as follows:-
"Art. 229. Officers and servants and the expenses of High Courts (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such case as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the legislature of the state, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officer of the court authorised by the Chief Justice to make rules for the purpose:55
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund."
(Quoted)
49. By reason of the aforementioned provision, the Chief Justice has the power to frame Rules or to delegate such power to frame the Rules to some other Judge or Officer of the Court who may be authorised by him to do so and once such Rules are made, the same, in so far as they relate to salaries, allowances leaves or pensions, will require the approval of the Governor of the State. In other words, the Chief Justice of a High Court has the power to frame Rules. This Rule, read with Rule 23 of the Calcutta High Court Service (Conditions of Service and Recruitment) Rules, 1960 makes it clear that the Chief Justice shall have same powers that are exercisable by the Government in respect of West Bengal Service Rules and such power shall be exercised by the Chief Justice or by such person or persons as he may, by general or special Order, so directs.
50. In a Judgment of the Supreme Courtd passed in the case of M. Gurumoorthy Vs. Accountant General, Assam (Nagaland) 56 reported in AIR 1971 SC 1850 it has been held that Article 229 contemplates full freedom to the Chief Justice of the High Court in the matter of appointments of officers and servants of the concerned High Court and their conditions of service. These can be prescribed by Rules made by him. Apart from the special situation contemplated by the proviso to clause(2) of Article 229, the only exception is that the Governor's approval must be sought for to the extent the Rules relate to salaries, leave or pensions. This exception, it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expenses, the Governor has to approve it.
51. Under the aforementioned circumstances, even if there was no Order of the Supreme Court (since Judgment had already been declared on 9.1.2007 as stated above) can it be argued that the Chief Justice of a High Court is denuded of his powers to even take steps in relation to the officers and servants of the High Court relating to their salaries, allowances, leave or pensions ? The answer would be an emphatic NO ! Under the provisions of Article 229, the Chief Justice has full freedom to look after matters pertaining not only to appointments of officers and servants of the High Court but also to matters pertaining to their conditions of service. This is obviously to ensure the independence of the High Courts in a State. The approval of the Governor is confined only to the Rules relating to salaries, allowances, leave or pensions but all other Rules in respect of conditions of service do not require his approval. Under such circumstances, can it be said that merely because there was no 57 subsisting order of the Supreme Court and merely because a Rule had been framed being the "Calcutta High Court (Appellate Side and Original Side) Services (Revision of Pay & Allowances) Rules, 2007", the Chief Justice acted without jurisdiction in constituting a Committee, as has been argued by the learned Advocate General? The answer to this question would again be NO ! Even if Rules have been framed, such as the 2007 Rules and even if there is no subsisting Order of the Supreme Court, even then the Chief Justice can still take steps for purposes of framing rules and in that pursuit he is certainly empowered to appoint or constitute a Special Pay Committee for purposes of submission of a Report. Following the same analogy, it is noticed that Article 229 (2) confers the power of delegation to the Chief Justice and therefore, his action by way of constituting a Committee was totally justified. It is therefore completely erroneous to argue that the recommendation of a Committee, having been formed by the Chief Justice, was without jurisdiction and therefore its recommendations cannot be enforced. These recommendations, in terms of Article 229 can very well form the basis for framing of Rules.
At the same time, even if the earlier interim Order of the Supreme Court has merged with the final Order, even then, the message that their Lordships wanted to convey by reason of the first Order cannot, in view of the attitude of the Government now being taken, be ignored. That message was clearly and loudly stated in para-11 of that Order saying that "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 58 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."
52. We must also bear in mind that the recommendations of the Special Pay Committee are not recommendations of an ordinary Body having no status at all. The majority recommendations are by three high Constitutional functionaries and the State cannot say that these constitutional functionaries are oblivious of the plight of the State. They are as much concerned about the welfare of the State and at the same time, they cannot also ignore the Institution which they represent by reason of their warrants of appointment under Article 217 of the Constitution of India. They have taken Oath under the IIIrd Schedule, inter alia solemnly resolving that they will discharge their duties without fear or favour and will uphold the Constitution and the laws. When such three dignitaries make a recommendation, it does not lie in the mouth of the State to virtually "pooh-pooh" the same and say that it is either meaningless or without jurisdiction or that if it is followed, it will upset the dynamics of the State. The recommendations of such a high powered Committee cannot, in the opinion of this Court, be criticised by the deponent to the Affidavit- 59 in-Opposition by saying, in paragraph 4(q), that the administrative members are "neither less qualified nor less competent" to understand the nature of jobs and equivalence of employees of different categories in the High Courts vis-à-vis the employees of the State Government. Such remarks, in the opinion of this Court, not only amounts to belittling the authority of the Chief Justice who framed the Special Pay Committee but, it also amounts to even questioning/doubting the observations of the Supreme Court which said that "the Government will have to bear in mind the special nature of work done in the High Court which the Chief Justice and his colleagues alone could really appreciate" [ see (2004)1 SCC 334 (para 11) ]
53. Following the same analogy, the deponent to the counter-affidavit could not have criticised the recommendations of the three high constitutional functionaries in paragraph 4 (j) by saying that "thus the judicial members have worked out a formula which almost amounted to double revision on the basis of proposed revised scale"
54. The attitude of the deponent amounts to straightaway rejecting the recommendations of the judicial members even before exchange of meaningful thoughts between the State Government and the Chief Justice of the High Court. It is clear that once Rules are framed by the Chief Justice with regard to conditions of service of employees and officers of the High Court, they become final and conclusive except with regard to salaries, allowances, leave or pension, which require the approval of the Governor and the reason for requiring such approval is the involvement of financial liability of the 60 Government. If the approval cannot be granted, the Governor cannot straightaway refuse to grant approval because before doing so, there must be an exchange of thoughts between the State Government and the Chief Justice of the High Court followed by a reasoned Order giving "weighty" and justifiable reasons. In other words there should be a "meaningful consultation". While dealing with the expression "Consultation" as laid down under Article 233 of the Constitution of India relating to appointment of District Judges, the Supreme Court has interpreted the meaning of the word "consultation" in paragraph 17 of the judgment passed in the case of State of Jammu & Kashmir Vs A.R.Zakki & ors reported in 1992 Supp (1) SCC 548. Though the word "consultation" is not mentioned under Article 229 of the Constitution but under the proviso to sub- Article (2) of Article 229, it is laid down that so far as the Rules that are to be made in respect of salaries, allowances, leave or pensions, they would require the approval of the Governor of the State. This provision is a proviso and it is subservient to the rule making power of the Chief Justice in respect of the Conditions of Service and therefore, even before the Governor either rejects or approves any Rule relating to salaries, allowances, leave or pensions, it is mandatory that there would be a "meaningful" consultation. The letters brought on record by the Petitioners dated 4.11.2010 issued by the Officer-on- special duty as contained in Annexure-P-3, is a "straightaway rejection" of the proposal/recommendations, and that too, on the basis of a single meeting held at the residence of the Chief Justice on 21.9.2010 between the three Senior Judges of the Court, the Finance Minister, the Law Minister and the Advocate General. 61 This, in the opinion of the Court does not amount to a meaningful consultation. The judgment of the Supreme Court in A.R.Zakki's case supra lays down, in paragraph-17, as follows:-
"17.While construing the expression "consultation" this Court has laid down that though consultation does not mean "concurrence", it postulates an effective consultation which involves exchange of mutual viewpoints of each other and examination of the relative merits of the other point of view. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. [ See:
Chandramouleshwar Prasad V. Patna High Court and M.M. Gupta v. State of J & K.]. In the context of Article 233 of the Constitution of India which requires that appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State, this Court in M.M. Gupta case has observed as under: (SCR p.
626: SCC p. 438, para 34) "...normally, as a matter of rule, the recommendations made by the High Court 62 for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reasons find it difficult to accept the recommendations of the High Court, the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter. There can be no doubt that if the High Court is convinced that there are good reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court.
Efficient and proper judicial administration being the main object of these appointments, there should be no difficulty in arriving at a consensus as both the High Court and the State Government must necessarily approach the question in a 63 detached manner for achieving the true objective of getting proper District Judges for due administration of justice."
[ Quoted but emphasis by bold fonts is by this Court ]
55. The reasons given in the letter dated 4.11.2010 (Annexure-P-3), are vague reasons which merely says that the suggestions given by the three judicial members cannot be accepted by the Government as the suggested revision will "create repurcussions elsewhere". This, in the opinion of this Court, is an expression used by the Officer-on-special duty to frustrate the recommendations without even giving credence to the concept of "meaningful consultation". In the case of State of Maharashtra vs Association of Court Stenos, P.A., P.S. and anr reported in (2002) 2 SCC 141 it has been held by the Supreme Court in paragraph -5, while dealing with Article 229 vis-à-vis Article 226 of the Constitution of India and while referring to another judgment of the Apex Court passed in the case of Supreme Court Employees' Welfare Association Vs Union of India reported in (1989) 4 SCC 187, that "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 64 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 granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis."
56. On the basis of the aforementioned judgment, the fixation of the scales of pay as recommended by the Special Pay Committee cannot be said to be arbitrary. Reading both the judgments referred to above and weighing the provisions of Articles 229 of the Constitution of India, this Court is of the view that unless there was a meaningful exchange of ideas and effective consultation, the Officer-on -special duty could not have proceeded to communicate a decision that had the effect of sitting over in judgment on the recommendations of the judicial members of the Special Pay Committee.
57. Another aspect that cannot be ignored while writing this judgment is that whether the proposed revision will have repercussions elsewhere is a concern which is hardly worth taking note of. Whenever Pay Commissions are implemented in the country or in the state, there is always a burden on the exchequer. If the attitude of the State is such, as has been indicated in Annexure-P/3, then none of the Pay Commissions should ever have been implemented. A similar argument has been made by the deponent to the Affidavit-in-Opposition in paragraph 4(m) wherein he has stated that sanction of educational allowances and transport allowances for the High Court 65 employees would have disastrous consequences on the total financial system of the State Government as it would automatically pave the way for creating demands of similar nature from the counterparts of the State Government which would be "rather difficult for the Government to resist". He has also stated in paragraph 4 (o) that "sanctioning of the educational benefits to these employees and the higher scale of pay as recommended by the judicial members of the Commission would not only have a cascading effect on the total economic scenario of the State but it would ruin the exchequer of the State as all the expenses on account of development would have to be curtailed and the development projects would thereby come to a standstill." These, according to this Court are mere bald and vague statements which are fit to be rejected.
This Court does not also appreciate the remarks of the Officer on Special Duty made in the letter dated 4.11.2010 (Annexure-P/3) where he has stated that a Group 'D' employee's sufferings, stress and strain cannot be compensated by raising his scale abnormally from Scale No. 1 to Scale No. 5 and that the strain of such employees may be mitigated through augmentation of infrastructural and manpower facilities- viz. through sanction of additional posts, installation of additional lifts, providing trolleys for carrying files and documents for which separate allotment can be made. These remarks are reminiscent of the days of the French Revolution when, it is widely believed, that Queen Marie Antoinette, on being told that the Peasants had no bread, responded by saying "let them eat cakes !!"
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The Question here is not whether an employee will be happy or satisfied with infrastructural augmentation but the point is the money that he will take home each month to feed his family and to meet the ever growing price escalations in every walk of life. This aspect has totally been ignored and it amounts to making remarks which are merely high sounding, highfalutin and full of "pomp sound and fury signifying nothing" !!.
58. Such statements therefore, coming from the deponent are hardly worthy of any substance. The deponent cannot be allowed to make such statements unless the Government is able to prove that the recommendations are so irrational and so arbitrary that such and such development projects and such and such other projects would be seriously jeopardised. Unless the Government establishes these as matters of fact and on the basis of actual data, they cannot be allowed to question the recommendations of the three judicial members who, according to the language of the Supreme Court are alone capable of appreciating the nature of the work that is being done in the High Court and the necessity to meet the needs of those who are actively involved in the day-to-day running of the High Court. Mere supply of trolleys, augmenting some infrastructural tools and suggesting a "High Court Duty Allowance" are childish suggestions which, at best, can be termed as "lollipops" being shown to a child but they cannot be said to be a reasonable stand to meet the requirements of the day nor can it be said to meet the requirements which have been suggested by the three judicial members in their Report.
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59. Under the circumstances this Court holds that the stand of the Government so far exhibited as well as taken by the Deponent, in the Affidavit-in-Opposition amount to a desperate attempt on their part to find an "escape route" from having to meet the requirement of the High Court without there being a justifiable reason.
60. Under these circumstances, this Court directs that the recommendations which have been made by the three judicial members be treated to be the basis for framing fresh Rules and since Article 229 presupposes Governor's approval in matters pertaining to salaries etc., this Report shall now be taken to be the basis for further negotiations between the Chief Justice and the Government so that appropriate Rules can be framed. Accordingly the letters dated 4.11.2010 as contained in Annexure-P-3 and the letter dated 15.11.2010 written by the Finance Minister as contained in Annexure-P-5 are held to be communications frustrating the provisions of Article 229 of the Constitution of India and the Respondents are directed to consider the recommendations of the Judicial Members of the Special Pay Committee once again in an effective and meaningful manner as well as in effective consultation with the Chief Justice of this Court or with any other Judge or Judges or Officer of this Court as may be authorized by the Chief Justice in that regard for purposes of framing a fresh set of Rules which will meet the requirements of the day such as rising prices in almost every aspect of life. For this purpose, the State Respondents are directed to approach the Registrar General of this Court within a period of 2(two) weeks from today and seek an appointment from the Hon'ble Chief Justice for purposes 68 of commencement of the dialogue and/or consultations. It is expected that the consultations will be concluded as expeditiously as possible so that the same can be sent to the Governor for his approval.
The Writ Petition stands disposed of with the aforesaid observations and Directions.
If urgent certified copy of this Judgment, duly photocopied, is applied for, the same be issued subject to usual terms and conditions.
(Tapen Sen, J.) ...........April, 2011 S.B. Approved for Reporting