Calcutta High Court
Shri Ajoy Kumar Banerjee vs State Of West Bengal And Ors. on 30 August, 1990
Equivalent citations: (1990)2CALLT303(HC)
JUDGMENT Mahitosh Majumdar, J.
1. The writ petitioner holding the post of Protocol Officer prays for the following relief:
A writ of and/or in the nature of Mandamus should not be issued commanding the respondents to accord a proper pay scale commensurate with the duties performed by the petitioner, namely Rs. 800-1400/- with retrospective effect.
2. The facts of the case are as follows :-
The petitioner joined the post of Lower Division Clerk the High Court, Appellate Side, Calcutta on March 11, 1968 and he was promoted to the rank of Upper Division Assistant, Appellate Side of this Court with effect from April, 1987.
3. By an order dated October 29, 1987 the petitioner was appointed as Protocol Officer. The said order dated October 29, 1987 is quoted below :-
"G.S. File No. 43 of 1987. The Government having sanctioned a post of Protocol Officer in the scale of pay of Rs. 380-910/- plus a Special Pay of Rs. 50/- per month in lieu of one permanent post of U.D. Assistant vide Judicial Department letter No. 1703-J dated 13.8.87 Shri Ajay Kumar Banerjee, U.D. Assistant is appointed Protocol Officer in the scale of pay of Rs. 380-910/- with special pay of Rs. 50/- per month with effect from 4.11.87 until further orders."
4. The petitioner has to discharge his duties and shoulder responsibilities during usual office hours and even at night, sometimes, such duty involves the discharge of duties round the clock, during public holidays he is required to discharge his duties far less to speak Saturdays and Sundays. The petitioner is required to attend to various types of work. He further not only looks up the needs of judges of this Court but also the Judges of the Supreme Court and other High Courts especially those of the eastern region. Duties of the petitioner as Protocol Officer which are required to be performed, include among others :
(i) All sorts of personal work of the Judges of this Court;
(ii) Arrangements for the Judges visits to other States and various places in West Bengal;
(iii) Looking after the maintenance of the High Courts cars,
(iv) Maintenance and check up of the Log Books of the Court Drivers,
(v) Preparation of overtime bills of the High Court drivers,
(vi) Other urgent administrative works as are assigned to the petitioner by the Registrar, High Court, Appellate Side, Calcutta,
(vii) Receive and see off the Judge whenever they visit Calcutta at any hour of the day and night,
(viii) Make all necessary arrangements in connection with their stay, transport, security, sightseeing etc. at Calcutta.
(ix) Making correspondence with Government department in connection with the visits of the Judge to Calcutta.
(x) Contacting the Judges and/or Registrars of other High Courts in connection with visits of the Judges of Calcutta High Court outside the State.
(xi) Meeting the Judges regularly during their stay and supervising all arrangements in Calcutta in connection with their comfortable stay here even at mid-night and early hours of the morning.
5. The pay scale and other benefits made available to other Protocol Officers of different High Courts are much more higher than that of the pay scale made available to the Protocol Officer of this High Court.
6. In those circumstances the writ application was presented before the Court.
7. Affidavit-in-opposition was filed on behalf of the Government of West Bengal. Sri Chandan Kumar Banerjee, Assistant Secretary, Judicial Department affirmed an affidavit on May 29, 1989. Respondents in their affidavitin-opposition denied the material allegations of the petitioner.
8. The stand of the State respondents is placed hereunder-
The job of the Protocol Officer of the High Court is not streneous and arduous than that of the Upper Division Assistant of the State Government nor the nature of duty is different. The petitioner is not denied the enjoyment of any public holiday. The petitioner being a State Government employee is entitled to such leave and other privileges as are made available to other employees. Respondents admitted that the nature of duty of the petitioner as a Protocol Officer is distinctly different from and cannot identical with that of an upper division Assistant. The petitioner chose to be a Protocol Officer with identical pay of Upper Division Assistant and Rs. 50/- as special pay from October 29, 1987 against the post created by the State Government. The nature of the duty assigned to the Protocol Officer sometimes warrants his performance beyond the stipulated Office hours which is also applicable in the case of office assistants. The petitioner being the Protocol Officer cannot claim that his working hours will be at par with the working hours of the office Assistant. The post is an executive post beyond the cadre of clerkship.
9. The duty of the Protocol Officer of this Court is not to look after the demand of Judges of the Calcutta High Court and Judges of Supreme Court and High Courts of other States. All arrangements in respect of the Judges of the Supreme and other High Courts visiting the State of West Bengal on official work who are treated as State Guest are made by the State Government according to the instructions issued by the State Government in this behalf as and when occasion arises. Most of the duties enumerated are of clerical in nature and for that the Government cannot award higher pay to an employee of this High Court if such employee choses to do personal work of the Judges. It is not obligatory to attend to the needs of the Judges on private visit to the State. The pay structure of the employee of the High Court of this State cannot and should not be compared with his counter-parts in other States inasmuch as different scales of pay for the same category of employees in different States exist and such pay scale depends upon the resources and pay structure of other employees of that particular State. Scale of pay of the Protocol Officer of the I & SA Department of this Government is much less than those as mentioned by the petitioner. Work of Protocol Officer in different offices of the State Government is done by different classes of Officers namely Deputy Secretary, Assistant Secretary, Section Officer and even Upper Division Assistant in addition to their own duties and for such Protocol work none get any additional emoluments. The proposal of the High Court for creation of post of Protocol Officer for the Court on the scale of pay of Rs. 425-1050 with a special pay was duly considered by the Government and thereafter sanction for the post in the scale of pay of Rs. 380-910 with special pay of Rs. 50/- per month was accorded and the difference of pay of the post on the basis of the proposal of the High Court and that the scale sanctioned by the Government at the maximum of the scale is only Rs. 90/-. At the initial stage it is Rs. 5/-. The petitioner cannot claim the scale of pay at par with the Protocol Officer of different States. The pay of the Protocol Officers of the High Court of other States are not identical. Similarly Protocol Officers of High Court of other States are not Central Government employees having any uniformity of pay of Protocol Officers of High Courts. The claim of the petitioner tor higher pay scale will invite other administrative complications apart from the pressure upon public exchequer. After taking into account the duty and also pay structure of other Government employees the pay scale of the petitioner was fixed by the concerned authorities. In those, circumstances respondents claimed that the writ application be dismissed with costs.
10. During the pendency of the writ application this Court considered the letter dated, February 15, 1988 addressed to the Joint Secretary by the former Registrar for enhancement of the pay scale of the Protocol Officer in the pay scale of Rs. 800-1400/- With special pay of Rs. 50/- as also the letter dated August 2, 1988 of the Joint Secretary, Government of West Bengal informing the Registrar, High Court, Appellate Side to the effect that the proposal for revision of pay scale of the Protocol Officer of the High Court, Calcutta for onward transmission to the Member Secretary, the Pay Commission and the representation dated, September 8, 1988 and the note dated June 2, 1988 by Mr. J.C. Ghosh and Mr. A.K. Roy while accepting the submission of Mr. Indrajit Sen that the pay scale against serial No. 9 is applicable to the petitioner without prejudice to the rights and contentions of the Court directed respondents to submit a report within the time as Stipulated in the said order. The Government submitted a report which inter alia states that it is difficult to change the present pay scale of the post of Protocol Officer on the question of applicability of the pay scale No. 9. The report deals with the applicability of pay scale No. 9. (Extract from Judicial Department File No. J25-1O8/88 Pt). The said note submitted by Mr. S. Ghosh on October 18, 1989 and the note signed by Mr. S.K. Chakraborty on October 20, 1989 are recorded in the manner following :-
"Learned State Advocate Shri Sen submitting in the Court that the post will be allowed the pay scale No. 9 i.e. Rs. 1260/- -2520/- as recommended by the 3rd Pay Commission. The recommendation of the Pay Commission is now under examination of the Government. After a policy decision reached in the matter of recommendation of the 3rd Pay Commission the recommendation will be implemented with the issue of Gazette Notification in the matter. So a decision in piece meal manner may not be arrived at in this; matter. So the Law Cell may obtain time in the matter of allowing the pay scale No. 9 to the petitioner as per indication of the State Advocate.
Sd/- S. Ghosh-18.10.89.
Notes above.
The issue relating to the pay scale of the Protocol Officer, Calcutta High Court has since been reconsidered by the P.I. Cell in their notes on PP 5-0 ante. Their views may be endorsed to the Judicial Department.
Sd/- S.K. Chakraborty 29.10.89."
11. The learned Counsel appearing for the parties after advancing their oral submissions filed their written arguments pursuant to the leave granted to them.
12. The learned Counsel appearing for the petitioner claimed and contended that the petitioner is an employee of the High Court. The Chief Justice of the High Court is competent to change and alter the conditions of the service of employees except that for matters involving additional financial implications, the prior approval of the Governor has to be obtained.
13. In the perspective of the constitutional scheme High Court can make recommendation for such approval. The employer is the best judge to as' certain the nature and extent of duties and responsibilities performed by his employee. The High Court on an objective appraisal of the duties and responsibilities performed by the petitioner found that the upward revision of the pay scale of the petitioner is merited one. The State Government is, not competent to reassess and review the factual determination of the employer. The prior approval of the Governor is required under the Constitution. Such approval is only a matter of formality particularly when a financial implication arising out of the proposal not of any magnitude is involved and such implication relates to only one employees of the High Court. In those circumstances the executive after having due regard to the factual determination of the High Court that the petitioner's pay be re-fixed in the scale of pay of Rs., 800-1400/- should not stand in the way of according the approval as required under the Constitution. Emoluments to be paid by the State Government on the basis aforesaid should have rational with the nature and duties performed by the employees concerned. The Supreme Court laid down the principles to the extent indicated above. Emoluments should be commensurate with the status and post of an employee. Efficient service cannot be expected from an employee without proper scale of pay being given to him. Assessment of the objective facts is effectively and objectively made by the High Court and on the basis! of such assessment proposal was made to the State Government for due approval to the proposal of the High Court for higher pay scale of Rs. 800-1400/- for the peti' tioner as found by the Judicial Secretary was a matter fit to be referred to the Pay Commission. The High Court referred the matter to the Pay Commission. It does not appear that the Pay Commission noted such proposal nor did it address itself to such consideration. WBS (ROPA) Rules, 1990 does not contain any pay scale for Protocol Officer of this Court. In those circumstances the learned Counsel for the petitioner submitted that the Government should consider the matter of according approval to the scale of pay of Rs. 800-1400/- for the petitioner with effect from October 29, 1987 i.e. the date of appointment of the petitioner as Protocol Officer and suitably fix up an appropriate corresponding scale of pay from the date WBS (ROPA) Rules, 1990 stands operative.
14. Before the Court emberks upon the rival contentions of the parties it is fit and proper to refer to some of the basic documents for the purpose of determination of the issues involved in the instant writ application.
15. The Registrar, High Court, Appellate Side by a letter dated February 15, 1988 requested the Judicial Secretary to issue necessary orders for giving the Protocol Officer of this Court suitable scale befitting the post he is now holding. The said letter reads thus :-
"I am directed to refer to the Court's letter No. 13776-G.S. dated 17.11. 1987 (copy enclosed) wherein the Court requested the Government to issue necessary order for giving the Protocol Officer of this Court a suitable scale of pay befitting the-post he is now holding."
16. In doing so, I am to say that the pay scale of Protocol Officer in this Court is U.D. Scale (Rs.380-910/-); with the special pay of Rs. 50/- per month. The nature of duties of Protocol Officer in this Court is very arduous and is also ownerous one as already stated in the Court's letter under reference. With that end in view, the Court wrote to different High Courts requesting them to enlighten this Court regarding the pay scale of Protocol Officer in those courts. The Court received communications from some High Courts and it is seen that the scale of pay drawn by the Protocol Officer in those High Courts is higher than the scale of pay drawn by the Protocol Officer of this Court.
17. In this perspective, I am to forward herewith, a copy of letters dated, 23.11.87; 5.12.87; 9.12.87 and 22.12.87 from the High Courts of (1) Kerala (2) Punjab and Haryana (3) Patna (4) Bombay (5) Gujarat and (6) Madras, wherefrom it is seen that the scales of pay of the Protocol Officers of the abovementioned High Courts are as follows :-
(1) Rs. 975-25-1100-30-1400-40-1720. (23 years).
(2) Rs. 800-25-85O-30-1000-40-1200-50-140O (Plus Rs. 50 as special pay).
(3) Rs. 1350-50-1700-75-2000 plus spl. pay of Rs, 100/- per month.
(4) Rs. 1000-50-1500 & Rs. 500-20-700-25-900.
(5) Scale of pay drawn by the) Special Officer in that High Court.
(6) Rs. 1000-60-1300-70-1650 (Revised scale Rs. 1800-110-2900).
18. Having regard to the facts and figures set forth above, the Court is of the opinion that there should be two posts of Protocol Officers in this Court. I am, therefore, to request that Government, may be moved (1) for enhancing the pay scale of the present Protocol Officer to the scale of pay of Rs. 800-1400 with special pay of Rs. 50/- per month and (ii) for creation of another post of protocol officer in the same scale of pay viz. Rs. 8001400/- with special pay of Rs. 50/- per month."
19. The Registrar again by a letter dated 20th May, 1988 sent a letter to the Member-Secretary, Pay Commission to the following effect :-
"In continuation of Court's letter No. 4640-G dated 13.4.88 forwarding a memorandum from the High Court, Appellate Side, Calcutta to the Third Pay Commission, Government of West Bengal connected with the revision of Pay scales of the employees of the Appellate Side of this Court, I am directed to say that the Court has moved Government in February, 1987 for enhancement of the Pay Scales of the present Protocol Officer from Rs. 380-910/with Special Pay of Rs. 50/- per month to the scale of pay of Rs. 800-1400/with Special Pay of Rs. 50/- per month."
20. It is also to be recorded that this Court recommended the enhanced pay scale of Rs. 800-1400/- with special pay of Rs. 50/- per month as is drawn by the Protocol Officer of Punjab and Haryana High Court. A note was placed before the Acting Chief Justice by the Deputy Registrar-" Registrar.
21. The Pay scale of Protocol Officer is U.D. Scale (Rs. 380-910/-) with Special Pay of Rs. 50/- per month. The nature of duties of Protocol Officer in this Court is very arduous and also voluminous one. With that end in view, we wrote to different High Courts requesting them to enlighten us regarding the pay scale of Protocol Officer in their Courts. We received communications from as many as 13 High Courts. A tabular statement containing necessary information regarding the Pay Scales of Protocol Officer will be found at Flag 'A'. It will appear therefrom that the work of Protocol Officer in some High Courts are performed by Officers in the Scale of Rs. 3580-5380, 2250-3050 and Rs. 1280-2450/-. It will further appear that in the High Court where there is a post of Protocol Officer, the pay scale is higher than that of the Protocol Officer of our Court.
22. In view of the matter I humbly propose that we may forward copies of letters received from High Court: (1) Kerala, (2) Punjab and Haryana, (3) Patna, (4) Bombay, (5) Gujarat and (6) Madras along with necessary, facts and figures to the Judicial Department requesting that the pay scale of Protocol Officer may be enhanced to Rs. 800-1400 with special pay of Rs. 50/- per month as is drawing by the Protocol Officer attached to the Punjab and Haryana High Court.
May be laid before the Hon'ble Acting Chief Justice for favour of and kind consideration".
23. The Acting Chief Justice duly affirmed the note by putting his 'Yes' on February 9, 1988. The Chief Justice also ordered to upgrade the post of the Protocol Officer which is to be treated as outside the cadre. It is appropriate for the Court to refer to the approval of the Note as shown against the Flags A tod B.
24. Let the note as shown against the Flags A and B read thus :-
(A) The offer of the Government is not acceptable in view of the fact that we have to surrender one post of Upper Division Assistant and that a Special Pay of Rs. 50/- will not attract any Upper Division Assistant or an outsider to carry on the duties of the Protocol Officer faithfully and diligently.
(B) In this view of the matter, we may again move the Government for reconsideration of the matter so that at least a post of Protocol Officer with the Scale of pay of Rs. 425-1050 may be created as asked for in the Court's D.O. Letter No. 1386-G.S. dated 11th February, 1987".
25. Mr. Chittatosh Mukherjee, the learned Chief Justice approved the abovementioned note on September 3, 1987.
26. The Pay Commission was moved, but such move of the Court proved to be futile as would appear from the note dated August 3, 1988 which inter alia recorded that the copy of the Court's letter dated, February 5, 1988 along with the copy of the letter of the Judicial Secretary to the Pay Commission for favour of consideration after a hearing given to the petitioner. Mr. M. N. Roy, J. approved the action as shown against the proposal. Recommendation of the Court was placed before the Pay Commission and the Pay Commission gave a hearing on July 30, 1988. It is therefore persistedly felt by the Court that the enhancement of the pay scale of the petitioner warrants revision and Mr. D.K. Sen the then Acting Chief Justice duly approved it on February 9, 1988. It appears that despite the steps taken by the Court for appropriate scale of pay for the post of Protocol Officer neither the State Government nor the Pay Commission did fix any pay scale for the post of Protocol Officer on the basis of the recommendation made by this Court and duly approved by the Acting Chief Justice in the manner indicated above. The contentibn of the petitioner that the High Court is the proper judge to assess the duties and responsibilities performed by its employees is seriously resisted by the State Government. The resistence of the respondents, in my view, has no foundation at all. The High Court duly recorded the nature of duties performed by the petitioner which is not only ardous but also pain staking. There is no dispute that the petitioner has to render onerous duties which involves high degree of responsibility. The Court having regard to the greater responsibility and pain-staking job attached to the post of Protocol Officer found upward revision of the pay scale of the petitioner is merited and also recommended enhancement of the pay scale of the petitioner to the scale of pay of Rs. 800-1400/- with a special pay of Rs. 50/per month. This objective appraisal of the Court is the basis of the proposal sent to the Government. The Chief Justice being the best Judge approved the upward revision of the pay scale of the petitioner on such basis as is indicated, above.
27. It is true that the prior approval of the Governor as is required under the Constitutional scheme is a must, but such approval as claimed by the petitioner is opposed by respondents on such grounds! as are indicated above. The plea of respondents that the petitioner chose to join the post of Protocol Officer and he cannot claim higher scale of pay nor the comparison as advanced" by respondents that the work of the Protocol Officer in different departments of the Government of West Bengal done by different groups of officers as mentioned therein is not tenable on the ground that the said officers' discharging the function of the Protocol Officer does not get additional emoluments. It is claimed that the State Government is not concerned with the mode of work of the petitioner. The plea, in my view, is wholly untenable inasmuch as the petitioner holding the post of Protocol Officer is required to discharge such onerous nature of work and shoulder high degree of responsibility was found eligible by this Court for upward revision of the scale of pay for the reasons indicated in all the letters addressed to the State Government. The State Government under the Constitutional scheme is not the judge to decide that the petitioner is not entitled to upward revision of the pay scale on the most untenable grounds as are advanced by Mr. Sen both during his oral submission and also in the written argument. I am unable to accept the contention of Mr. Sen for the reasons that the State Government is not competent to make job evaluation of an employee of the High Court, nor it can reach a finding that the petitioner is not required to look after the needs of the Judges as also the visiting Judges. It is an admitted fact that the petitioner all through out the year was required to attend the Judges coming from other States and also the Judges from the Supreme Court. This fact cannot be ignored in such carefree and casual manner as is done in the facts of the case. Even if the visiting Judge is not treated as State Guest then the High Court on reciprocal basis, is required to attend to the Judges of the Supreme Court and the other High Courts. The plea of respondents that the petitioner cannot be allowed higher scale of pay on the ground that the State will suffer irreparable loss and injury as the persons who were performing the job of Protocol Officer irrespective of the designation and attendly their out-door duties shall also agitate for higher scale.
28. The petitioner, according to Mr. Sen, has no legal right to claim the higher scale of pay than that of the Upper Division Clerk. In my opinion, it is ill-founded that the same cannot be accepted inasmuch as the functions of the Protocol Officer attached to this Court as altogether different from the functions of the Protocol Officer of different departments of the State Government. The whole stand of respondents suffers from basic infirmities inasmuch as the contentions dispute involved in the writ application is to be determined in the perspective of the Constitutional Scheme.
29. In view of the Article 229 of the Constitution of India, the Chief Justice is the authority to change and alter the condition of service of an officer of the High Court. Mr. Chittatosh Mookherjee the learned Chief Justice approved the scale of pay of Rs. 425-1050/- for the Protocol Officer and that. approval of the learned Chief Justice was not accepted. Mr. Justice D. K. Sen, the Acting Chief Justice approved the recommendation for higher scale of pay of Rs. 800-1400/- of the petitioner on February 9, 1988 and that too was not accepted. Therefore, the entire matter is to be judged from the angle of Article 229 of the Constitution.
30. The plea of the State Government as regards the additional financial involvement is now to be judged on the principle of fairness being an integral part of the rule of law is now to be measured by cash nexus. In our modern society of commercialism such plea as taken by the State Government is wholly unfortunate. The Acting Chief Justice having approved the recommendation of higher scale of pay for the petitioner, the steps, taken by this Court are required to be considered. In Article 229 of the Constitution. of India condition of service of officers of High Court are to be made by the learned Chief Justice subject to the framing of rules. The Chief Justice is the only authority of the High Court, subject to fulfilment of requirements as engrafted in Article 229 of the Constitution of India to change and alter service condition of the employees of the High Court. The constitution gives the primary step to the law made by the legislation to the views of Chief Justice regarding the conditions of service of the officers of the High Court. Therefore, the question that emerges is who else is bettern aleveate with the various nuances and requirements of service than the Chief Justice of the Court. So if the Chief Justice as is clear from the approval according on February 9, 1988, is of the view that the Protocol Officer of the High Court should be accorded upward revision of pay, than a view which is normally accepted by the Administration without being refused. Under proviso to Clause (2) of Article 229 of the Constitution of India, it is provided that the rules made within the clause relates to salaries, allowances etc, shall require the approval of the Governor of the State. When the Chief Justice approves the recommendation upward revision of pay scale fpr the post of Protocol Officer now held by the petitioner, it cannot be effectuated unless the Governor accords the approval. The fact that the approval has to be given by the Governor does not imply that the view of the Chief Justice of the High Court can be or should be treated to be on par like the recommendation of the official of a bureaucracy in the Secretariate. This Court of the view that when the recommendation with regard to the condition of service of an officer of the High Court is made by the Chief Justice, it would be in all fairness and in the spirit of Article 229 of the Constitution of India that ordinarily and normally the said recommendations should be accepted by the Government. This becomes more imperative when it is recognised that the severeignty of the people is founded upon the three pillars the executive, the legislature and the judiciary. The head of the judiciary in the State is the Chief Justice. When the Chief Justice approves the recommendation for upward revision of the pay scale of the petitioner, the inescapable conclusion that follows is that it has been made with a full sense of responsibility and circumspection having regard to the various public interest as also additional financial implication involved. It is also to be recorded that the sense of responsibility cannot be said to be embadded only in the corridors of the State Secretariate. Who better than the Chief Justice can know the nature of the duties performed by various officers in the High Court. Recommendation of the Chief Justice for the upward revision of pay scale of the petitioner is meant for being, duly approved by the Government. Recommendation for the upward revision of the scale of pay of the petitioner after taking into account pay scale attached to the post of Protocol Officer of the Punjab and Haryana High Court at Chandigarh was effected. In my view, the executive might have its own view. That view is not applicable to the case of an officer of the High Court inasmuch as the Judiciary has its own secretariate and its secretariate is the High Court. It is also to be borne in mind that the work of a Protocol Officer of the High Court is often specialised and more complex that of the Protocol Officer attached to different departments of the State Government. In view of the findings reached above, I am unable to accept the contention of Mr. Sen that the case of the petitioner should be judged on the basis of the pay scale made available to the Protocol Officer of different departments. The recommendation of this Court duly approved by the Acting Chief Justice on February 9, 1988, in my view, is required to be accepted on the principles indicated above. The arduous nature of work and discharge of high degree of responsibility by the petitioner renders him eligible for the pay scale of Rs. 800-to Rs. 1400/- with a special pay of Rs. 50/- per month. The refusal to accord approval by the State Government to grant to the petitioner the upward revision of pay scale, in my view, is wholly unwarranted, unauthorised and contrary to the fundamentals and essentials of Article 229 of the Constitution of India.
31. In view of the aforesaid findings, I allow this writ application and hold that the petitioner is eligible for the upward revision of pay scale of Rs. 800-1400/- to be appropriately fitted in the corresponding pay scale of plus Rs. 50/- as special pay from the date of presentation of the writ application. Respondents shall, after the receipt of this order, implement the same forthwith. No order as to costs.
32. The learned advocates of the parties shall be supplied with xerox copies of this judgment on their undertakings and on completion of usual formalities required for the purpose of obtaining the xerox copies of the judgment.