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SUBMISSIONS:

Mr. L. Nageshwar Rao, learned Additional Solicitor General, appearing for the Union of India, inter alia, submitted that the Division Bench of the High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that no writ of or in the nature of mandamus directing the Central Government and the Respondents herein to grant the pay scale of Rs.2000-3500/- w.e.f. 1.1.1986 in favour of the respondents can be issued. The learned counsel would urge that having regard to the provisions contained in Clause 2 of Article 229 of the Constitution of India, the Chief Justice of the High Court may in his wisdom fix the pay scale but therefor approval of the President of India was required to be obtained.

ARTICLE 229 OF THE CONSTITUTION:

Clause 2 of Article 229 of the Constitution of India empowers the Chief Justice of the High Court to prescribe by rules the conditions of service of Officers and servants of the High Court. Such Rule shall, however, be subject to : (1) the provision of any law made by the legislature of the State; (2) the approval of the President/Governor of the State so far as it relates to salary, allowances, leave or pensions.
Independence of the High Court is an essential feature for working of the democratic form of the Government in the country. An absolute control, therefore, have been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course.
MANDAMUS VIS-@-VIS ARTICLE 229(2) OF THE CONSTITUTION:
Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is a most extensive remedial nature. The object of mandamus is of to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.

In State of Maharashtra Vs. Association of Court Stenos, PA, PS and Anr. [(2002) 2 SCC 141], this Court interpreted the provisions Article 229 and proviso appended thereto in the following terms :

"On a plain reading of Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the salaries etc. of the employees of the High Court, subject to the Rules made under the said article. Needless to mention rules made by the Chief Justice will be subject to the provisions of any law made by the legislature of the State. In view of proviso to sub-article (2) of Article 229, any rule relating to the salaries, allowances, leave or pension of the employees of the High Court would require the approval of the governor, before the same can be enforced. The approval of the governor, therefore, is a condition precedent to the validity of the rules made by the Chief Justice and the so-called approval of the Governor is not on his discretion, but being advised by the Government. It would, therefore, be logical to hold that apart from any power conferred by the rules framed under Article 229, the Government cannot fix the salary or authorise any particular pay scale of an employee of the High Court. It is not the case of the employees that the Chief Justice made any rules, providing a particular pay scale for the employees of the Court, in accordance with the constitutional provisions and that has not been accepted by the governor. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution, can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principle of "equal pay for equal work" and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees' Welfare Asson. V. Union of India this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame rules after taking into consideration all relevant factors including the recommendations of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-`-vis the employees of the Supreme Court, should equally apply to the Chief Justice of the High Court vis-`-vis the employees of the High Court. Needless to mention, notwithstanding the constitutional provision that the rules framed by the Chief Justice of a High Court, so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a rule, providing a particular pay scale for its employees, the same should be ordinarily approved by the Governor, unless there is any justifiable reason, not to approve the same. The aforesaid assumption is on the basis that a high functionary like the Chief Justice, before framing any rules in relation to the service conditions of the employees of the Court and granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis."