Chattisgarh High Court
C.G.High Court Employees Ass.And Anr vs State Of Chhattisgarh And Anr on 14 September, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPS No. 4276 of 2011
1. C.G. High Court Employees Association, registered under the
Chhattisgarh Society Registration Adhiniyam, 1973, High Court
of Chhattisgarh Premises at Bodri, Bilaspur, through its president
Shri Pooran Singh Thakur, S/o Late Shri Arjun Singh Thakur,
Assistant Registrar , High Court Of C.G., Bodri, Bilaspur, C.G.
2. Porran Singh Thakur S/o Late Shri Arjun Singh Thakur, Assistant
Registrar, High Court Of C.G., Bilaspur And President Of C.G.
High Court Employees Association, High Court Of C.G., Bodri,
Bilaspur, C.G.
---- Petitioners
Versus
1. State Of Chhattisgarh through the Secretary, Law and Legislative
Affairs Department, D.K.S. Bhawan, Mantralaya, Raipur (C.G.)
2. The High Court of Chhattisgarh, Through Registrar General,
High Court Of C.G., Bodri, Bilaspur, (C.G.)
3. Secretary, Finance Department, Government of Chhattisgarh,
Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
4. Secretary, General Administration Department, Government of
Chhattisgarh, Mantralaya, D.K.S. Bhawan, Raipur (C.G.)
---- Respondents
For Petitioners : Mr. Sunil Pillai and Mr. P.R. Patankar, Advocates.
For State : Mr. Amrito Das, Additional Advocate General For Respondent No. 2: Mr. Shashank Thakur, Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 14.09.2022
1) Petitioner No. 1 herein is Chhattisgarh High Court Employees Association, registered under the Chhattisgarh Society Registration Adhiniyam, 1973 representing the employees and ministerial officers working in the establishment of High Court of Chhattisgarh and petitioner No. 2 who was working as Assistant Page 2 of 15 Registrar at the relevant time was president of the union. They have filed this writ petition under Article 226 of the Constitution of India and have prayed that order dated 28.07.2005 (Annexure P/
1), order dated 19.03.2007 (Annexure P/2) and memo dated 11.04.2008 (Annexure P/3) passed by the Secretary, Law and Legislative Affairs Department, Government of Chhattisgarh be kindly quashed and respondent No. 1 be directed to act in accordance with the constitutional obligation under Article 229(2) of the Constitution of India. It has also been prayed that the respondents be kindly directed to upgrade pay scale of the ministerial officers and employees with effect from 28.07.2005 within time frame fixed by this Court with all consequential benefits.
2) Learned counsel for the petitioners would submit that the petitioner association has made a representation to the Hon'ble Chief Justice of this Court on 04.03.2004 with a prayer to upgrade the existing pay scales of the ministerial officers and employees of the High Court of Chhattisgarh in line with Delhi High Court Model to be ideal model. The Hon'ble Chief Justice examined the matter from all angles and finding their demand genuine and legitimate recommended the proposal under Article 229(2) of the Constitution of India and forwarded the representation to the State Government through the Registrar General of this Court. Hon'ble Chief Justice also issued D.O. letter dated 24th December, 2004 to the then Hon'ble Chief Minister of the State with a request to consider the proposal and Page 3 of 15 has taken note of the facts as under :-
"Considering these facts and that the scales of pay of Delhi High Court, High Court of Himachal Pradesh and some other High Courts are higher than the High Court of Chhattisgarh, the demand is genuine and deserves to be accepted. The strength of the employees of the Chhattisgarh High Court is very less in comparison to the other High Courts. Therefore, in my opinion the demand of the employees is justified from all angles and their request requires sympathetic consideration."
3) The Deputy Secretary, Department of Law and Legislature Affairs Department vide its memo dated 19.03.2004 (Annexure P/9) sought financial implication to the High Court if the pay scale is upgraded. The Registrar General of this Court vide memo dated 06.04.2004 submitted the financial implication at that relevant time to the tune of Rs. 47,34,972/- per annum. Government of Chhattisgarh, Law and Legislative Affairs Department communicated vide memo dated 28.07.2005 that as per the General Administration Department, it is not feasible to upgrade the pay scale of the employees of the High Court treating their work to be special in nature. Further vide memo dated 19.03.2007 the Secretary, Department of Law and Legislative Affairs communicated that the finance department has rejected the proposal. Thereafter, vide memo dated 11.04.2008 it was communicated that Government of Chhattisgarh has again disagreed with the proposal. These orders have been assailed before this Court by filing this writ petition.
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4) Learned counsel for the petitioners would further submit that as per the Justice Shetty Commission's recommendation, advance increment has been granted to the ministerial officers and employees of the Subordinate Judiciary of the State, but no such upgraded pay scale has been granted to the ministerial officers and employees of the High Court of State though they are similarly situated and are getting lesser salary than the employees working in the subordinate judiciary of the High Court. He would further submit that it is not in dispute that the employees of the High Court are working hard to meet out day to day works of the High Court. Majority of the employees are coming much before the Court hours and staying beyond the Court hours without getting any additional financial benefits such as overtime or any other special allowances. It is unfortunate that though they are part of the judicial system, still they are struggling for so long for their legitimate demand. The sub- ordinate Court employees of the State are enjoying benefits of higher pay scale but High Court employees are denied whereas High Court employees are no way inferior to the Subordinate Court.
5) Learned counsel for the petitioners would further submit that while rejecting the proposal the State Government has not assigned any reason why nature of duties performed by the employees of the High Court are not special in nature, how the nature of the duties of the Chhattisgarh High Court differs from Delhi High Court or the Secretariat of Chhattisgarh. Page 5 of 15
6) The State has filed their return on 30.11.2011 wherein they have referred to the note-sheet of General Administration Department, Government of Chhattisgarh dated 13.10.2004 wherein while denying the claim of the petitioners have taken a stand that if the employees of the High Court are allowed to have higher pay scale other departmental employees may also demand for similar hike, therefore, the request was refused. It has also been contended that as per Rule 11 of the Chhattisgarh Government Rules of Business made under Article 166(2)(3) of the Constitution of India no department without previous consultation with the finance department can decide the grading or cadre of the post or emoluments or other conditions of the service of the post and the Finance Department has not given approval on the recommendation of the Hon'ble Chief Justice. As such, the petitioners are not entitled to get higher pay scale and would pray for dismissal of the writ petition.
7) Learned Additional Advocate General would submit that Article 229 of the Constitution of India provides framing of Rules for salaries, allowances, leave or pensions. Unless the Hon'ble Chief Justice exercises his constitutional power or acts on the basis of the recommendations of a committee constituted by him for the purpose of fixation of scale of pay and laying down other conditions of service, mere forwarding of a representation to the State Government to consider the same would not amount to exercising the power under Article 229 of the Constitution, therefore, Hon'ble the Chief Justice is obliged to constitute a Page 6 of 15 committee to frame appropriate rules for the aforesaid purpose. Thereafter, with recommendation of the Hon'ble Chief Justice the proposal to upgrade pay scale may be sent to the State Government through the Secretary, Law and Legislative Affairs for consideration. In the present case no such exercise has been carried out. To substantiate his contention he would refer to the judgment of Hon'ble Supreme Court in case of State of U.P. vs. Section Officer Brotherhood and Another 1 wherein the Hon'ble Supreme Court has examined the power of Hon'ble Chief Justice under Article 229 of the Constitution of India and has held as under :-
"31. In this case, the Chief Justice merely forwarded the representation of the Respondents dated 15th March, 1994 for grant of a higher scale of pay with effect from 1.1.1986 directing the Registry to forward the same to the State Government with recommendations to consider the same on the ground of parity. Such forwarding of recommendations to the State Government did not involve any application of mind on the part of the Chief Justice as was required under Article 229 of the Constitution of India. The Chief Justice on his own did not arrive at any decision that the jobs performed by the concerned officers were comparable to their counterparts in the Central Secretariat or Delhi High Court. No rule was framed fixing the terms and conditions of service or the scale of pay for different categories of the employees of the High Court. Only because in the forwarding letter, the State Government was asked to consider the demand of the concerned officers favourably, the same by itself would not mean that the requirements of Article 229 of the Constitution stood complied with. Unless the Chief Justice of the High Court exercises his constitutional power or acts on the basis of the recommendations of a committee constituted by him for the purpose of fixation of scale of pay and laying down other conditions of service; only forwarding of a representation to the State Government to 1 (2004) 8 SCC 286 Page 7 of 15 consider the same favourably without anything more would not amount to exercise of the constitutional jurisdiction under Article 229 of the Constitution."
8) Learned Additional Advocate General would further submit that since in the present case, no such specific rules have been framed, the State cannot examine grant of higher pay scale to the High Court employees, therefore, the order passed by the authorities dated 28.07.2005 (Annexure P/1), order dated 19.03.2007 (Annexure P/2) and memo dated 11.04.2008 (Annexure P/3) are legal, justified and do not warrant interference by this Court.
9) This Court vide order dated 23.08.2022 has passed the following order :-
"This Court has perused Annexures P/1, P/2 and P/3. It does not reflect that the authorities at the Secretariat while passing the order have applied their mind or considered the materials for recording such finding. These are not speaking orders.
Let the files relating to decision making process by the authorities be placed on record by way of affidavit of the Secretary, Department of Law and Legislative Affairs, Government of Chhattisgarh."
10) The learned counsel for the petitioners would refer to the affidavit filed by the respondent State and would submit that since no reason has been assigned while rejecting the claim of the petitioners, it is nothing but arbitrariness on the part of the respondent authorities. On this count alone the order Annexure P/1, Annexure P/2 and Annexure P/3 deserve to be set aside by this Court.
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11) Opposing the submission, the learned counsel for the State would submit that while rejecting the claim of the petitioners, it has been observed by the General Administration Department that the duty discharged by the employees of the Court is not of a special nature as such the reason for rejection has been assigned.
12) In pursuance of order dated 23-8-2022 passed by this Court, the State has filed affidavit wherein still no reason has been assigned to justify their stand. They have reiterated the earlier stand taken by them in their return. The State Government has not placed on record before this Court for consideration whether there was any deliberation or discussion before rejecting the proposal which shows that the State Government has no reason to stand by their contention.
13) It is well settled position of law that the Court while exercising the power under Article 226 of the Constitution cannot interfere with the policy decision unless it suffers from arbitrariness, illegality or mala fide. In the present case, no reason has been assigned by the Finance Department, Government of Chhattisgarh while turning down the recommendation made by the Hon'ble Chief Justice under Article 229(2) of the Constitution of India. The State has not given any reason why the High Court employees of the State cannot be granted upgraded pay scale at par with the High Court of Delhi. They have not made any comparison between the nature of duties discharged by the employees of the High Court of Chhattisgarh with other High Court employees to Page 9 of 15 get pay scale at par with employees of the Delhi High Court.
14) The Hon'ble Supreme Court in M/s. Hochtief Gammon v. State of Orissa & others2, has held as under:-
"13. The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous considerations. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bone fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by courts by failing to give reason. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts."
15) The Hon'ble Supreme Court in State of U.P. & another v. Johri Mal3, has considered the issue and has observed that the Court cannot interfere with the policy decision but can certainly interfere with the decision making process, if the Court finds that there is no material or irrelevant material has been considered by the Government while taking decision and has held as under:-
"30. It is well-settled that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the Court is not 2 (1975) 2 SCC 649 3 (2004) 4 SCC 714 Page 10 of 15 competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision maker's opinion on facts is final. But while examining and scrutinizing the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can re-appreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well- nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touch- stone of the tests laid down by the Court with special reference to a given case. This position is well settled in Indian administrative law. Therefore, to a limited extent of scrutinizing the decision making process, it is always open to the Court to review the evaluation of facts by the decision-maker."
16) Thus, from above stated factual and legal position, it is quite vivid that the decision making process while issuing the order Annexure P/1, Annexure P/2 and Annexure P/3 suffers from non- consideration of relevant material or they have considered the materials which were irrelevant. This Court can definitely annul the decision taken by the State. Thus on this count alone , this Court reaches to a conclusion that in the decision making process no plausible reason has been assigned by the State to reject the recommendation therefore, the action of the State Government suffers from illegality and mala fide. Accordingly, order dated 28.07.2005 (Annexure P/1), order dated 19.03.2007 Page 11 of 15 (Annexure P/2) and memo dated 11.04.2008 (Annexure P/3) are hereby quashed.
17) Before adverting to the further submission made by the counsel for the parties, it is expedient for this Court to extract provisions of Article 229 of the Constitution of India which reads as under :-
"Section 229. Officers and servants and the expenses of High Courts -
(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State (3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in 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."
18) Learned counsel for the petitioners agreeing with the legal position of law as enumerated by the Hon'ble Supreme Court Section Officer Brotherhood (supra) would also submit that the framing of specific rules for the employees of the High Court is necessary. He would further submit that issue of higher pay Page 12 of 15 scale at par with employees and ministerial officers of the Hon'ble Delhi High Court has been raised before the various High Courts by their employees. The Hon'ble High Court of Madras in case of R.N. Arul Jothi and others vs The Principal Secretary to Government and Another decided on 09.07.2020 in WP No. 22730 of 2018 has decided this issue and has directed to constitute a committee which shall go into the details with respect to the nature of duties discharged by the staff working in various cadres before the Delhi High Court as well as the Madras High Court before effecting the pay pattern and has held as under :-
"85. Having come to a conclusion as above and in the light of the above decision of the Honourable Supreme Court in State of Rajasthan vs. Ramesh Chandra Mundra and others, mentioned supra, we now proceed to examine the claim of the writ petitioners. The writ petitioners claim that the scale of pay they receive is lesser than the one received by their counterparts in Delhi High Court. This was also analysed and examined by the Staff Grievance Committee, in-depth and a conclusion has been arrived to the effect that the pay pattern of the Delhi High Court is more suitable for being adopted to the staff of the Madras High Court. At the same time, we are of the view that the nature of work discharged by the employees in the various categories working in the Delhi High Court and the staff of the Madras High Court, also requires a comparison before deciding to adopt the pay structure of the Delhi High Court. This was not done by the Staff Grievance Committee and there is no material collected to substantiate the same.
86. Therefore, we deem it necessary to infer the comparative working pattern of the staff of the Madras High Court and Delhi High Court as well, before recommending the pay pattern of the Delhi High Court to be adopted. In this context, useful reference can be made to the decision of the Honourable Supreme Court in Page 13 of 15 the case of High Court Employees Welfare Association, Calcutta and others vs. State of West Bengal and others, reported in (2004) 1 Supreme Court Cases 334, wherein it was held in Para No.11 as follows:-
"11. The Government will have to bear in mind the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a Special Pay Commission consisting of Judges and Administrators shall be constituted by the Chief Justice in consultation with the Government to make a report and on receipt of such report, the Chief Justice and the Government shall thrash out the problem and work out an appropriate formula in regard to pay scales to be fixed for the High Court employee. Let such action be taken within six months from today."
87. In the light of the above decision, in order to give a quietus to this raging issue, we deem it appropriate to direct that this Judgment shall be placed before the Honourable Chief Justice of this Court for constituting a Committee consisting of (i) Judge(s) of this Court (ii) Secretary or Additional Secretary to the Government of Tamil Nadu, Finance Department and Law Department and any other prominent person. The Committee shall go into the details with respect to the nature of duties discharged by the staff working in various cadres before the Delhi High Court as well as the Madras High Court before effecting the pay pattern."
19) From bare perusal of the provisions of the Article 229 of the Constitution of India and law laid down by the Hon'ble Supreme Court it is necessary to have a comparative working pattern of the State of the Chhattisgarh High Court and Delhi High Court as well before recommending the pay pattern of the Delhi High Page 14 of 15 Court to be adopted. This issue has also come up for consideration before the Hon'ble Supreme Court in case of High Court Employees Welfare Association, Calcutta and Others vs. State of West Bengal and others 4 wherein it was held in para 11 as under :-
"11. The Government will have to bear in mind the special nature of the work done in the High Court of which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a special Pay Commission consisting of Judges and the 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 6 months from today."
20) In the light of the above discussion to resolve the grievances of the petitioners representing the employees and ministerial officers of the High Court, Respondent No. 2 is directed that this order shall be placed before the Hon'ble Chief Justice of this Court for constituting a committee of (i) Judge(s) of this Court (ii) Secretary or Additional Secretary to the Government of Chhattisgarh, Finance Department and Law Department. The Committee shall go into the details with respect to the nature of duties discharged by the staff working in various cadres in the Delhi High Court as well as Chhattisgarh High Court before effecting the pay pattern. Since, Article 229 of the Constitution of India provides framing of Rules for salaries, allowances, leave or pension, the Hon'ble Chief Justice of this Court may constitute 4 (2004) 1 SCC 334 Page 15 of 15 and empower committee to frame appropriate rules for the aforesaid purposes for the future. The above exercise may be completed preferably within a period of four months.
21) With the aforesaid observation, the writ petition is disposed off.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh