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CASE NO.: Writ Petition (civil)  134 of 1999

PETITIONER: High Court Employees’ Welfare Association,Calcutta & Ors.

RESPONDENT: State of West Bengal & Ors.

DATE OF JUDGMENT: 09/01/2007

BENCH: K. G. Balakrishnan, G. P. Mathur & R. V. Raveendran

JUDGMENT: J U D G M E N T

R.V. RAVEENDRAN, J.

       The Government of West Bengal appointed the Fourth Pay  Commission in the year 1995. With the concurrence of the High Court, the  State Government included the Calcutta High Court employees in the  reference. Subsequently, on the representation of the employees of the  Calcutta High Court,  the Chief Justice of the High Court appointed a Three  Judges Committee to examine the feasibility of making pay rules for them in  exercise of powers under Article 229 of the Constitution of India. After  examining the said committee’s report, the Full Court resolved to constitute  a Committee of five-Judges to advise the Chief Justice in framing the  relevant rules. The five-Judge Committee examined the matter in detail and  made two sets of draft Rules - the Calcutta High Court Services (Conditions  of Service & Recruitment) Rules, 1998 and the Calcutta High Court Services  (Revision of Pay & Allowances) Rules, 1998. The Chief Justice approved  the said two sets of Rules (for short the ’draft Service Rules’ and ’draft Pay  Rules’) and sent them to the State Government for approval of the Governor  under the proviso to Article 229(2).

2.      The State Government sent a reply dated 21.11.1998 expressing its  inability to recommend the two Draft Rules for approval of the Governor,  for the following four reasons :

(a)     Creation of new posts by the Chief Justice, proposed under the  draft Service Rules, was not contemplated under Article 229.

(b)     The terms of reference to the Fourth Pay Commission  included  the High Court employees. The report of the said Pay  Commission had already been received by the Government on  31.5.1998.   (c)     Approval of the draft Pay Rules for the High Court employees  will result in treating them on a basis different from other  Government employees and that will create unjust inequality,  apart from administrative problems to the State Government.  

(d)     The State was unable to bear the financial burden that would  arise if the two sets of rules were introduced.

3.      The High Court in its letter dated 21.12.1998 expressed the view that  such rejection was not proper and against the spirit of Article 229.  This  brought forth a reply dated 11.1.1999 from the Chief Secretary (second  respondent) to the Registrar of the High Court, pointing that on three earlier  occasions (in the years 1971, 1981 and 1990), the High Court employees  were included in the reference to the State Pay Commissions with the

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concurrence of the High Court and the recommendations of the said Pay  Commissions were fully implemented in the case of High Court employees  also. The letter further stated that the State’s decision not to recommend the  draft Rules for approval of the Governor was in conformity with the  constitutional provisions. Being aggrieved, the petitioner, an association of  High Court employees, filed this petition challenging the refusal by the State  Government, to approve the draft Service Rules and draft Pay Rules. The  petitioner sought the following reliefs :  (i) a declaration that the first  respondent has acted arbitrarily, irrationally and in a discriminatory manner  and its communications dated 21.11.1998 and 11.1.1999 are  unconstitutional, null and void; (ii) a direction to the State Government to  recommend to the Governor,  approval of the said Rules under  Article  229(2); and (iii) a declaration that the first respondent and/or the Governor  should grant approval to the draft Service Rules and draft Pay Rules.  

4.      On hearing the petition, this Court made an order dated 18.11.2003  directing the constitution of a Special Pay Commission. The operative  portion of the said order is extracted below :

"In the instant case, the primary reason for refusal of grant of approval by  the Governor has been the Government’s claim of inability to bear the  financial burden imposed by the draft rules. The Governor, under Article  229(2) has the power to refuse grant of approval, provided there is "very  good reason" for the same. It cannot be said that there has been no  exchange of views between the Chief Justice and the State Government.  The correspondence between the State Government and the Chief Justice  commencing from 21.11.1998 reveal sufficient degree of exchange of  ideas. During the negotiation between the Government and the Chief  Justice, both sides expressed their respective views on the matter.  However there is no meeting point.

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.

List the petition after receipt of the report from the High Court or the  Government."

5.      In pursuance of it, a Special Pay Commission consisting of five  members \026 three Judges representing the High Court and two Principal  Secretaries representing the State Government - was constituted by the Chief  Justice. The Committee, after a detailed consideration,  submitted its Report  dated 30.8.2004 consisting of 16 recommendations. As the dispute has now  narrowed down to a single issue, as we will presently point out, we extract  below only those portions of the report relevant to the issue :

"The Special Pay Commission constituted by the Hon’ble Chief Justice  has tried to approach the problems which have surfaced during the process  of fixation of pay scales of the employees of the High Court keeping in  mind the stand of financial inability expressed by the State Government  and the work pattern and special needs of the High Court administration.

In order to reach a meeting point, the Commission as a matter of policy  agreed that the scales of pay as suggested by the State Government on the  recommendation of the Fourth Pay Commission be accepted with effect  from 1st January, 1996, with certain alterations on account of the onerous  nature of the jobs performed by the High Court employees in comparison

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to their counterparts in the State Government and the higher entry level  qualifications prescribed for the same nomenclature of jobs. It was also  proposed that in some cases the benefit allowed at the Entry Level be  allowed in the senior/promotional post at the time of fixation of pay in the  revised scale.                                     . . . \005\005\005\005... .  The Committee accordingly recommended as follows :  

1. The Scales of Pay as suggested by the State Government on the basis of  the recommendations made by the Fourth Pay Commission be accepted in  most cases with higher initial benefits for the different categories of staff  of the Calcutta High Court, both on the Original and Appellate Sides as  recommended by the Special Pay Commission and set out in the chart  hereto annexed.

2. Such higher initial benefits will in certain cases be by way of merger of  the Special Pay enjoyed at present by the incumbent in the revised scale of  pay together with additional Special Allowance or by way of suitable  increments/boosters with effect from 1st January, 1996.

(3 to 12. Recommendations relating specific categories of posts omitted as  not relevant)    

13. In most of the other categories the Pay Commission recommends  that pay be fixed in the revised scale with a higher initial start two  stages above the entry point. Existing employees may be placed in the  corresponding revised scale/(s) at two higher stages in the scale by  way of fitment.

14.  [omitted as not relevant]

15. All other benefits under the promotion policy statement, fitment in the  revised scales, career advancement scheme, special pay and allowance,  medical benefits, leave travel concession etc., being extended to the  employees of the State Government, be extended mutatis mutandis to all  staff of the High Court as well.  

16. An Anomalies Committee be constituted by the Hon’ble Chief Justice  to remove any anomalies that may surface in giving effect to and  implementing the recommendations which are accepted.

The Pay Commission has prepared a chart setting out the different posts  available in the High Court up to the post of Deputy Registrar which is  equivalent in rank to a Deputy Secretary in the government establishment  and the recommended emoluments applicable to the different categories of  staff, both in the pre-revised scales and the revised scales with effect from  1st January, 1996. The chart also contains the reasons for such  recommendations and is annexed to and forms part of this report."

[Emphasis supplied]

                        The chart enclosed to the report listed 65 categories of posts. The two  representatives of the State Government however added the following note  of dissent :

"In respect of Serial Nos.31 to 49, 64 and 65 the view of the Members  representing the State Government is that pay in respect of the said posts  should be re-fixed in the corresponding revised scale without any higher  initial start, but with Special Allowance of Rs.200/- per month for the  posts at Serial Nos. 31 and 32, Special Allowance of Rs.100/- per month  for posts at Serial Nos.33 to 39 and Special Allowance of Rs.75/- per  month for posts at Serial Nos. 40 to 49, 64 and 65."

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Serial Nos.31 to 49 in the chart related to the posts of U.D. Assistant, Court  Clerk, LD Assistant, Salary Typist, Extra Typist (regular), Telephone  Operator, Driver, Muharir Grade I, Muharir Grade II, Bank Clerk, Record  Arranger, Daftry, Jamadar, Senior Mali, Group D (Regular) \026  Peon/Orderly/Borkondaz/Cleaner/Night Guard, Farash, Mali, Visthi,  Sweeper, respectively. Sl. No.64 referred to Grade I  Peon/Durwan/Burkandaz and Sl.No.65 referred to Grade I Visthi/Sweeper).  

6.     The said report was filed before this Court. The petitioner and the High  Court filed their respective affidavits on 16.11.2004 and 17.1.2005 praying  that the note of dissent by the two State representatives on the Committee be  ignored, and the recommendations of the Special Pay Commission be  accepted in toto. The State Government, however, filed an affidavit dated  20.12.2004  praying that the recommendations made by the Special Pay  Commission in its report dated 30.8.2004 be modified in the light of its  suggestions and submissions (made in the said affidavit). With reference to  para 13 of the recommendations of the Special Pay Commission, the State  submitted thus :

"With reference to 13th recommendation made by the Special Pay  Commission, I submit that it was suggested that with higher start at  3rd/4th/5th stage in different posts at the entry level as well as for  senior/promotional posts at the time of fixation of pay in the revised scale,  imply allowing a secondary/new scale of pay for all the employees  irrespective of any speciality or specific reason. That will be against all  norms of pay scale determination and fixation of pay at the entry level as  well as fixation of pay on promotion."

7.      When the matter came up on 11.2.2005, this Court adjourned the case  to enable the Chief Justice and the concerned Ministers of Finance and Law  to meet and work out a satisfactory solution based on the recommendations  of the Special Pay Commission. Accordingly, a meeting was held between  the Chief Justice and the Ministers in charge of the Finance and Law  Departments on 13th and 18th April, 2005. After detailed  deliberations/discussions, all the pending issues were sorted out  unanimously as recorded in para Nos.1 to 11 of the  of the meeting (duly  signed by the Chief Justice and the two Ministers) are extracted below :  "After detailed deliberations on the recommendations of the Special Pay  Commission in respect of each of the posts shown in Chart A appended to  the report of the Special Pay Commission, it was unanimously agreed  that\026

1.      In respect of the posts at serial numbers 1, 2, 4, 5, 7-9, 11-30, 50- 53, 56-63, the recommendations of the Special Pay Commission  would be accepted.

2.      In respect of the posts at serial numbers 31-49, 64 and 65, the  recommendations of majority members of the Special Pay  Commission would be accepted.

3.      In respect of the post at serial number 3 (Officer-on-Special Duty),  the same scale of pay and special allowance as applicable to the  post of Assistant Registrar, High Court would be prescribed.

4.      In respect of the post at serial number 6 (Assistant Registrar), pay  would be fixed in the revised scale of pay of Rs.8,000-Rs.13,500  with higher initial start at Rs.9,100/- and, in addition, a special  allowance of Rs.200/- would be allowed.

5.      In respect of the post at serial number 10 (Stamp  Reporter/Additional Stamp Reporter), the recommendations of the  Special Pay Commission would be accepted with the modification  that no additional increment for law degree would be allowed.

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6.      In respect of the post at serial number 21(A) (Technical Assistant  in Judges’ Library), pay would be fixed in the corresponding  revised scale (Rs.4,500-Rs.9,700) with higher initial start at  Rs.4,800/-.

7.      In respect of the post at serial number 54 (Typist Grade-I), pay  would be fixed in the corresponding revised scale of pay  (Rs.4,000-Rs.8,500) with higher initial start at Rs.4,125 and, in  addition, a special allowance of Rs.100/- would be allowed.

8.      In respect of post at serial number 55 (Shorthand-Typist), pay  would be fixed in the corresponding revised scale of pay  (Rs.4,000-Rs.8,850) with higher initial start at Rs.4,550/-.

9.      The fixation of pay of the existing employees of the High Court  in the revised scales would be done in accordance with the  principles laid down in Rule 7 of the West Bengal Services  (Revision of Pay and Allowances) Rules, 1998. A copy of the  rules is enclosed.

10.     Subject to para 9, other recommendations of the Special Pay  Commission would be accepted."

11.     These decision would form the basis of the Calcutta High Court  Services (Revision of Pay and Allowances) Rules to be framed in  accordance with Article 229(2) of the Constitution of India and the  proviso thereunder."

8.      When this case came up before this Court on 2.5.2005, the parties  reported that all the outstanding issues had been sorted out as per the  decisions taken at the joint meeting held on 13/18.4.2005. A joint request  was made by all the parties for adjourning the matter till July, 2005 to enable  them make necessary changes in the draft Pay Rules.

9.      The High Court modified the draft Pay Rules in accordance with the  decisions taken at the meeting Minutes dated 13/18.4.2005. The draft of the  rules so modified, titled ’Calcutta High Court (Appellate Side & Original  Side) Services (Revision of Pay & Allowance) Rules, 1998 (for short  ’modified draft Pay Rules’) was forwarded to the State Government. The  State Government by letter dated 22.6.2005 objected to the second para of  Rule 4 and sought its deletion. Another objection was also raised, which was  subsequently sorted out.  

10.     Rule 4 of the modified draft Pay Rules, is extracted below :

"4. Fixation of initial pay in the revised scale:- The principles of  fixation of initial pay in the revised scale as laid down in rule 7 of the  West Bengal Services (Revision of Pay & Allowances) Rules, 1998 shall  apply mutatis mutandis to the Officers and staff of the High Court on its  Appellate Side and Original Side.

After fixation of pay in the corresponding revised scale of pay following  the principles of rule 7 of West Bengal Services (Revision of Pay &  Allowances) Rules, 1998, existing employees shall be placed at two  stages higher in the revised scale(s).

Note: The expression ’Existing employees’ shall mean the employees on  the Appellate side and Original Side of High Court who were in Court’s  service on 31.12.1995 and who did not retire from Court’s service on  31.12.1995 and who did not retire from Court’s service in the afternoon of  that date."                                           (emphasis supplied)

Rule 7 of the West Bengal Services (Revision of Pay and Allowances)

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Rules, 1998 (for short ’State Pay Rules’) referred to in Rule 4 of the  modified draft Pay Rules, to the extent relevant for our purpose, is extracted  below :

"7.     Fixation of initial pay in the revised scales of pay :- (1) The initial  pay of a Government employee who elects to draw pay in the revised scale  of pay from any date between the 1st January, 1996 and the 1st January,  1997, or who is deemed to have elected under sub-rule (3) of rule 6 to be  governed by the revised scale of pay on and from the 1st January, 1996,  shall, unless in any case the Governor by special order directs otherwise,  be fixed separately in respect of his substantive pay in the permanent post  on which he holds a lien, or would have held a lien had his lien not been  suspended, and in respect of his pay in the officiating post held by him in  the following manner, namely :-

(i)     an amount representing 40 per cent of the basic pay in the existing  scale including stagnation increments, if any, shall be added to the existing  emoluments of the employee;

(ii)    after the existing emoluments have been so increased, the pay shall  be fixed in the revised scale at the stage next above the amount thus  computed;

Provided that \026

(a)     if the minimum of the revised scale is higher than the amount so  arrived at, the pay shall be fixed at the minimum of the revised scale;

(b)     if the amount so arrived at is higher than the maximum of the  revised pay scale, the pay shall be fixed at the maximum of the revised  scale, the balance remaining as personal pay to be adjusted against  stagnation increment as and when it becomes due:

provided further that subject to the other provisions contained elsewhere in  these rules, the personal pay so determined and remaining after absorption  of a portion of it in stagnation increments, shall be treated as an element of  basic pay for the purpose of fixation of pay on promotion/appointment of  the Government employee to higher post or advancement to higher scale.                 Explanation \026 For the purpose of this clause the term "existing  emoluments’ shall mean the existing emoluments as defined in clause (b)  of sub-rule (1) of rule 3;"

11.     The Registrar-General sent a reply dated 24.6.2005 stating that the  second para of Rule 4 was in terms of the decisions arrived at the meeting  Minutes dated 13/18.4.2005. In its reply dated 6.7.2005, the State  Government denied the same, observing thus :

"It is submitted that there was no decision to allow two additional  increments to the existing employees after fixation of pay in the revised  scales in accordance with the principles laid down in Rule 7 of the West  Bengal Services (Revision of Pay & Allowances) Rules, 1998.

It is also submitted that keeping in view the observations of the Hon’ble  Supreme Court regarding the special nature of work done in the High  Court, it was agreed to grant higher initial start in most of the revised  scales of pay and also Special allowance with pay for some of the posts.  Employees of the State Government are not entitled to such benefits."

In its subsequent letter dated 27.7.2005, the State Government further  clarified its stand thus : "\005. during discussion in the meeting between the Hon’ble Chief Justice  of the High Court at Calcutta and the Minister-in-Charge of Finance and  Judicial Departments (referred to as joint meeting) held on April 13, and

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April 18, 2005, the Finance Minister made it clear that no additional  increments could be allowed to the existing employees after fixation of  pay in the revised scales.  However, in view of the observations of the  Hon’ble Supreme Court of India regarding the special nature of work in  the High Court, it was agreed to grant higher initial start in most of the  revised scales of pay and also special allowance in addition to pay for  some of the posts.

It is submitted that that the fact that fixation of pay of the existing  employees of the High Court in the revised scales would be done in  accordance with the principles laid down in Rule 7 of the West Bengal  Services (Revision of Pay & Allowance) Rules, 1998 was made clear in  paragraphs 9 and 10 of the  of the joint meeting.  To emphasize that para  13 of the recommendations of the Special Pay Commission  regarding  fixation of pay of existing employees would be modified in terms of para  9 of the  of the joint meeting, the phrase, "subject to para 9", was used in  para 10 of the  of the joint meeting.  It is also submitted that in all cases of  revision of pay and allowances, the maximum advantage accrues to the  new recruits joining on or after the date of effect of the the revised scales  of pay.  This is a general feature of pay revision."

Parties have thereafter filed their affidavits before this Court reiterating their  respective stands.  They have not been able to  arrive at a consensus  by  mutual discussions, on this issue.  

12.     In view of the developments during the pendency of this petition, the  petitioner made a request during arguments that the relief sought in the writ  petition may be suitably moulded by reading the prayer in the writ petition  as one seeking a direction to the State Government to recommend the  modified draft Pay Rules (instead of the draft Pay Rules earlier made) to the  Governor for approval under Article 229(2). We permitted the petitioner to  file a formal application for modification of the prayer as the learned counsel  for the State and the High Court had no objection for such formal  amendment. Such an application for amendment of prayer was filed on  13.9.2006 and was represented after curing defects on 20.11.2006. The said  application for amendment is allowed.  

13.    It is not in dispute that when the Chief Justice and the Ministers met on  13/18.4.2005, the second part of recommendation No.13 of the Special Pay  Commission, that the existing employees of the High Court should be given  two increments, on fixation of pay in the corresponding revised scale of pay,  was also discussed and  a decision was taken on the recommendation.  The  agreed Minutes of the meeting, duly signed, includes a decision on the said  recommendation. While the State Government contends that the agreed  decision was not to accept the recommendation, the High Court contends to  the contrary. Though the State and the High Court had thus joined issue on  this recommendation, during the hearing, they fairly conceded that as the  Minutes of the meeting dated 13/18.4.2005 were consensual, a decision on  the controversy would now necessarily depend upon the interpretation of the  Minutes. The arguments by counsel was restricted to this issue. Neither side  made even an insinuation that the other side was making an incorrect  statement. The controversy arises on account of different perceptions of the  meaning of what has been recorded in the Minutes. Therefore the only  question that arises for our consideration is :  

"Whether the second para of Rule 4 of the modified draft Pay Rules  (which requires the existing employees of the High Court to be placed at  two stages higher in the revised scale) is in accordance with the  of the  Minutes of the meeting dated 13/18.4.2005 ?"  

To find an answer, the recommendations of the Special Pay Commission, the  correspondence and exchange of  views in regard to points of disagreement  and the decisions arrived at the meeting Minutes dated 13/18.4.2005, will

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have to be examined.   The intent and purpose of Art. 229(2) and the  observations of this Court made on 18.11.2003 when directing the  Constitution of  Special Pay Commission, also will have to be kept in view.  

The Constitutional Provision

14.     Before considering the rival contentions, we may refer to Article  229(2) and some of the decisions of this Court which have considered its  scope. Clause (2) of Article 229, reads thus:  

"(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."

In State of Andhra Pradesh vs. T. Gopalakrishnan Murthi [1976 (2) SCC  883], this Court held :  "\005the Chief Justice or some other Judge or officer of the Court authorised  by the Chief Justice is empowered to make rules laying down the  conditions of service of the High Court staff. But if the Rules made under  Clause (2) relate to salaries, allowances, or pensions then since in them is  involved the question of finance the framing of the rules under Clause (2)  requires the approval of the Governor\027that means the State Government.  One should expect in the fitness of things and in view of the spirit of  Article 229 that ordinarily and generally the approval should be accorded.  But surely it is wrong to say that the approval is a mere formality and in  no case it is open to the Government to refuse to accord their approval\005..   It is, however, not possible to take the view that merely because the State  Government does not see its way to give the required approval it will  justify the issuance of a writ of mandamus under Article 226 of the  Constitution as if the refusal, of the State Government was ultra vires or  made mala fide and arbitrarily."

In Supreme Court Employees Welfare Association v. Union of India [1989  (4) SCC 187], this Court observed that the Chief Justice has to apply his  mind to the framing of the Rules and the Government has to apply its mind  to the question of approval of the Rules framed by the Chief Justice relating  to salaries and allowances. The application of mind will include exchange of  thoughts and views between the Government and the Chief Justice and it is  highly desirable that there should be consensus between the two. The Rules  framed by a high dignitary such as the Chief Justice should normally be  accepted by the Government. Unless there is very good reason not to grant  approval, the approval should always be granted.

This Court in C.G. Govindan vs. State of Gujarat [1998 (7) SCC 625], stated  thus :  "\005.. the power of the Chief Justice of a High Court on the administrative  side to fix salaries of his staff is not absolute. Presumably, since this  would require financial outlay and may have repercussions on the salaries  of others, approval of the Governor is expressly required. The Governor, therefore, has a constitutional right to examine the proposal  of the Chief Justice relating to the salary of his staff and to either grant  approval or withhold it. Power to grant approval implies the power to  withhold it. Of course the power must be exercised reasonably and in  public interest. This constitutional methodology for fixing the salary of the  High Court staff should not, ordinarily, be circumvented by the High  Court by passing a judicial order which, in effect, directs the State to grant  the salary scale desired by the High Court without the approval of the  Governor. A mandamus of this kind should not be issued unless there is a  breakdown of the constitutional machinery resulting in grave injustice or  public detriment. There can be genuine differences in perception and

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honest differences of opinion between the Chief Justice and the  Governor/State on the question of salaries, allowances or pension of the  High Court staff. It is desirable that such issues are resolved  administratively in a reasonable manner by both sides and the provisions  of the Constitution in Article 229 are honoured."

In Union of India vs. S. B. Vohra [2004 (2) SCC 150], this Court observed :  

"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."

Contentions :

15.     We will next refer to the contentions. The petitioners  contended thus :           15.1)   The Special Pay Commission has examined the issue of pay revision  by keeping in view the financial difficulties expressed by the State  Government as also the work patterns and special needs of the High Court  administration. To reach a meeting point, the Special Pay Commission,  accepted the revised scales of pay suggested by the state government, on the  recommendations of the Fourth Pay Commission, with effect from 1.1.1996,  with certain alterations on account of the onerous and different nature of  chores/work performed by the High Court employees and higher entry level  qualifications prescribed for some High Court posts, when compared to  similar posts under the State Government. The alterations/additional benefits  recommended by the Special Pay Commission are :  

(i)     Merger of special pay with the existing pay, for purpose of  fitment under the revised pay scale plus grant of  additional  special allowance/increments to certain categories of  employees.

(ii)    Higher pay scale (instead of corresponding revised pay scale) to  certain categories of employees.  

(iii)   A higher initial start of two stages above the entry point to  certain categories.  

(iv)    Placement of the existing employees in the corresponding  revised scales of pay, at two higher stages, by way of fitment.   The recommendations were consensual in nature.  Though the State had  some reservations about some recommendation, they were all sorted out as  per the  Minutes dated 13/18.4.2005. Para 1 of the  Minutes dated  13/18.4.2005 confirmed the acceptance of the recommendations of the  Special pay commission in regard to posts at Sr. Nos. 1, 2, 4, 5, 7 to 9, 11 to  30, 50 to 53, 56 to 63. Para 2 of the  Minutes confirmed the acceptance of  the recommendations of the majority members of the Special Pay  Commission, in regard to posts at Sl.Nos. 31-49, 64 and 65. In regard to the  posts at Sr. Nos. 3, 6, 10, 21A, 54 & 55, the recommendations of the Special  Pay Commission were accepted with some modifications as detailed in paras  3 to 8 of the Minutes. Thus there was agreement in regard to all the posts  enumerated at Sl. Nos.1 to 65 of the chart annexed to the report of Special  Pay Commission vide paras 1 to 8 of the Minutes. No modification was  suggested in regard to recommendation No. 13 of the Special Pay  Commission relating to existing employees in the Minutes dated  13/18.4.2005.  Therefore the recommendation for placing existing  employees at two higher stages in the revised scale of pay, by way of fitment

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was accepted by the State.  

15.2)   Where a higher pay scale is granted or where the special pay is  merged with basic pay for fitment in the revised scale with grant of special  allowance, all employees - both newly recruited employees as well as the  existing employees - are benefited. But where the benefit extended to any  category of post is only a higher initial start by two stages at entry point,  then new recruits will be benefited and the existing employees in that  category of post will not get any benefit. If the interpretation of the State is  accepted, then the benefit of revised pay scales with higher initial start of  two stages at entry point is extended to new recruits in posts at Sl.Nos. 31 to  49, 64 and 65, without making a corresponding provision for existing  employees in those categories of posts. This would lead to  discrimination  among the employees holding the same posts, that is those who are  appointed on or after the date when the Rules came into force (new recruits)  and those who joined service earlier (existing employees).  

15.3)   If the benefit of second part of recommendation No. 13 made by the  Special Pay Commission is not given to the existing employees, the majority  of the employees of the High Court will end up not having any relief at all.

15.4)   Rule 7 of State Pay Rules relates to fixation of initial pay of new  recruits. It does not apply to fixation of revised pay of  existing employees  by fitment in the revised scale. The purpose of Paras 9 and 10 of the Minutes  was merely to apply the principles of Rule 7 of the State Pay Rules to  existing employees. Paras 9 and 10 of the Minutes cannot be read as  rejecting the second part of recommendation No. 13 relating existing  employees.

16.     On the other hand, the State Government has put forth the following  contentions:

16.1)   The State Government has all along made it clear that it cannot agree  for placing the existing employees of the High Court at two higher stages in  the corresponding revised scales. This was reiterated at the meeting on  13/18.4.2005. Para 2 of the minutes amounts to consent for the first part of  recommendation No. 13. Para 9 clearly states that the fixation of pay of  existing employees of the High Court in the revised scales will be as per the  principles laid down in rule 7 of the State Pay Rules. Rule 7 of the State Pay  Rules does not provide for grant of any additional increments to existing  employees after fixation of initial pay in the revised pay scale. It is evident  from para 9 of the Minutes that the second part of  recommendation No.13  of the Special Pay Commission relating to existing employees, was not  agreed.

16.2)   Para 10 of the  Minutes dated 13/18.4.2005 begins with the words  ’subject to para 9’, followed by the words "other recommendations of  Special Pay Commission would be accepted".  In   Chandavarkar Sita Ratna  Rao vs. Ashalata S. Guram [1986 (4) SCC 447], it was held that the  expression  ’notwithstanding’ is in contradistinction to the phrase ’subject  to’; and the term ’subject to’ conveys the idea of a provision yielding place  to another provision to which it is made subject.   Therefore, the effect of  Para 10 of the  Minutes dated 13/18.4.2005 is that the second part of   recommendation No. 13 of the Special Pay Commission regarding existing  employees,  was superseded by, or yielded to para 9 of  Minutes dated  13/18.4.2005. The use of the words ’other  recommendations’ after the  words ’subject to para 9’ would show that what are accepted from out of  Special Pay Commission’s recommendations are those, which are not  covered by para 9 or which are not contrary to para 9;  and Para 9 provided  only for re-fixation in terms of clause 7 and not for grant of two higher  stages in regard to existing employees. If the intention was to give the  existing employees the benefit of two higher stages as per the second part of  recommendation No.13 of the Special Pay Commission, then it would have  been clearly spelt out in para 9, or the words ’notwithstanding para 9’ would  have been used in para 10 instead of ’subject to para 9’. It was not done.

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Therefore the second part of recommendation No. 13 of the Special Pay  Commission to the effect that ’existing employees may be placed in the  corresponding revised pay scales at two higher stages in the scale of pay by  way of fitment’ was not accepted.   16.3)   If all the existing employees are to be given two higher stages in the  scale of pay after fixing the pay in the revised scale, then it would mean that  employees of the High Court  falling in the categories mentioned in Sr. Nos.  1 to 9, 11, 13, 14, 15, 17, 18, 19, 21, 23, 24, 25, 26, 31, 50, 51 and 54 who  have been given either the benefit of higher scale of pay, or special  allowance, or merger of special pay with special allowance, will also be  entitled to two further increments after fitment in the revised scale and that  would amount to granting double benefits  to those categories of employees,  which was neither intended nor permissible.  

16.4)   Rule 7 of State Pay Rules shows that it applies only to existing  employees and not to new recruits. Therefore there is no logic in the  contention of the petitioner that Rule 7 of State Pay Rules applies only to  new recruits and not to existing employees, and the purpose of  Paras 9 and  10 of the  Minutes dated 13/18.4.2005 was only to make the principles of  Rule 7 of State Pay Rules applicable to existing employees of the High  Court. In fact Rule 7 of the State Pay Rules applies only to existing  employees and not to new recruits.

17.     The learned counsel for the High Court broadly supported the  submissions of the petitioner-Association. He also submitted that there was  no basis for the apprehension expressed by the State that if the second part  of recommendation No. 13 of Special Pay Commission relating to existing  employees, is accepted, it will lead to conferring double benefits to  employees falling under categories at Sl.Nos. 1 to 9, 11, 13 to 15, 17 to 19,  21, 23 to 26, 31,  50, 51 and 54. He submitted that second part of  recommendation No.13 of the Special Pay Commission was to give the  benefit of two higher stages, only to the existing employees in those  categories of posts referred in the first part of the recommendation, that is  categories  to whom no special benefit has been granted. He submitted that  second part of recommendation No. 13 would apply to only existing  employees in the posts at Sl.Nos.10, 12, 16, 20, 22, 27 to 30, 32 to 49, 52,  53, 55 to 65.  

Effect of Paras 9 and 10 of the Minutes   

18.     On a careful consideration of the matter, we find that the claim and   contentions of the petitioner Association is based on the  erroneous premises  that Rule 7 of the State Pay Rules applies only to new recruits and not to  existing employees. To support its contention that Para 9 of the Minutes  does not amount to rejection of second part of recommendation No. 13, the  petitioner has tried to offer an alternative reason for the introduction of Para  9 in the Minutes. The petitioner contends that Rule 7 of State Pay Rules does  not apply to existing employees, and the purpose of Para 9 of the minutes is  only to make the principle contained in Rule 7 of State Pay Rules applicable  to existing employees.

19.     A revision of pay scales, has to be followed by fitment in the revised  pay scales, in the case of all employees who are receiving pay under the old  pay scales. Such fitment in the revised pay scales will have to ensure pay  protection, so that the total emoluments are not reduced on fitment in the  revised pay scales. The problem of fitment is noticed in Samaraditya Pal’s  ’Service Law’ (Second Edition, Page 277) thus :

"A pay scale has different stages. It starts with what is normally known as  initial pay and ends with a ceiling. Each stage in the scale is represented  by what is commonly referred to as basic pay. The emoluments which an  employee takes home is not only the basic pay at a particular stage but  also other admissible allowances viz. dearness allowance, house rent  allowance etc. When the existing pay scale (Rs.1,000-100-1,500-200-

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5,000) is revised (Rs.2,000-200-3,000-400-10,000) the question of fitment  arises in this form. At which stage of the new pay scale is an employee  who is at the stage of Rs.1,300 in the existing scale and is drawing a total  emolument of Rs.3,000 (including all allowances) on the day immediately  preceding the date on which the revised pay scale becomes effective to be  fitted?"

Therefore, a formula or principle of fitment is provided either in the pay  revision Rules, or by a separate order.  Such a formula or principle for  fitment is not required in the case of new recruits as they start at the lowest  stage of the applicable pay scale or at such stage as stated in the terms of  appointment.   Rule 7 of the State Pay Rules relating to fixation of initial pay  in the revised scale of pay thus applies only to existing employees who have  been extended the benefit of a revised pay scale. The words ’fixation of  initial pay’ in Rule 7 of State Pay Rules, refers to the first pay fixed in the  revised scale, on fitment. Therefore the contention of the petitioner that Rule  7 of State Pay Rules is intended to apply only to new recruits and the sole  purpose of paras 9 and 10 of Minutes is to apply the principle of Rule 7 of  State Pay Rules to existing employees is untenable.

20.     The second wrong assumption made by the petitioner-Association is  that in addition to getting the benefit of revised pay scales, each employee of  the High Court should get a special benefit either as a special allowance or  as higher pay-scale or a higher initial start or placement at a higher stage.  What is overlooked is revision of pay scales is itself the main relief and is a  substantial benefit. When the modified draft Pay Rules come into effect, all  the employees of the High Court will be entitled to the benefit of revised  scales of pay. Therefore everyone gets relief. The grievance  that unless the  existing employees get the benefit of being placed at two higher stages or  some special allowance, they are not getting any relief, is therefore   unfounded. Wherever a post carries onerous responsibilities, or special  functions, the Special Pay Commission has taken note and  provided, in  addition to the benefit of revised pay scale, either special allowance or a  higher initial start or even a higher pay scale and all such recommendations  have been accepted by the State Government.

21.     The contention of the petitioner that when the Rules relating to pay  extend the benefit of revised pay scale with a higher initial start at entry  point for any category of post, the existing employees in such category  should also be given a corresponding benefit of higher stages after fitment in  the revised scale of pay, to avoid discrimination, is also not tenable. There is  no question of discrimination when a revised pay scale with a higher initial  start is made applicable to a category of post, under the Rules, as even  existing employees get the benefit of the revised pay scales by re fixation of  their pay.

22.     We also find no basis for the assumption that all categories of  employees in the High Court are discharging more onerous functions 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 has 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.

23.     When the Special Pay Commission recommended that the existing  employees may be placed at two higher stages in the revised pay scale by  way of fitment, the State Government categorically stated that it was not  agreeable to accept the recommendation.  The said issue was discussed at the  meeting on 13/18.4.2005 between the Chief Justice and the Ministers for  Finance and Law. The pay scales applicable to the 65 categories of posts  mentioned in the Schedule to the draft Pay Rules, were agreed upon, with

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changes wherever necessary, as per paras 1 to 8 of the Minutes. The question  of fixation of pay of existing employees was then specifically dealt with in  para 9 of the Minutes by providing  that the fixation of pay of the existing  employees in the revised scales would be done in accordance with the  principles laid down in Rule 7 of the State Pay Rules. Para 9 does not  provide that after such fitment, the pay of the existing employees should be  hiked by two higher stages.  Nor does Rule 7 of the State Pay Rules provides  for it. This means that the second part of recommendation No. 13 in the  Special Pay Commission Report in regard to existing employees, was not  accepted. This is further made clear by para 10 of the Minutes which states  that subject to para 9 other recommendations of the Special Pay  Commission, would be accepted. That is, any recommendation of the  Special Pay Commission dealing with existing employees, will yield to para  9 of the Minutes. Paras 9 and 10 are clear, unambiguous and do not give  room for any doubt.  There is therefore no need to subject them to any  special interpretative process. The effect is all the recommendations of the  Special Pay Commission have been accepted subject to the changes  indicated in paras 1 to 8, and para 9 of the Minutes dated 13/18.4.2005.   

24.     We are therefore of the view that the second para of Rule 4  of the  modified draft pay rules is not in consonance with what has been agreed  upon by the State Government and the Chief Justice at the meeting on  13/18.4.2005, and requires to be deleted.  

25.     The petitioner contended that the State Government’s refusal is  arbitrary. It is submitted that the Special Pay Commission has considered the  matter in detail and made the recommendations and that the Chief Justice  who is the Authority to make the Rules relating to pay of High Court  employees has approved all the recommendations of the Special Pay  Commission. It is contended that the role of the State Government is limited  to approving  the rules made by the Chief Justice in so far as it relates to  salaries and allowances; and there is no justification for the State to disagree  with Para 2 of Rule 4 made by the Chief Justice on the recommendation of  the Special Pay Commission. Though the power to make rules in regard to  pay and allowances of the High Court employees is vested in the Chief  Justice subject to any law made by the Parliament, the Constitution has  advisedly made the power of the Chief Justice to make such rules  conditional upon approval of such rules by the Governor of the State, that is  the State Government.  The requirement of approval under the proviso  Clause 2 of Article 229 is not a mere formality.  We find that the State has  approved all provisions except one clause. It has expressed its inability to  agree to para 2 of Rule 4 as it provides for a general  increase in pay of all  existing employees by two stages, after fixation of pay in the revised pay  scale. The non-approval is in consonance with the Minutes of the meeting  dated 13/18.4.2005 between the Chief Justice and the Ministers representing  the State. But for the unfortunate misunderstanding relating to second para  of Rule 4 of the modified draft Pay Rules, the High Court and the State  Government have shown understanding of each other’s problems and by  exchange of views and discussions, sorted out the outstanding issues,  thereby maintaining the high constitutional traditions. Therefore there is no  need for any interference.  

26.     As all  issues have now been sorted out, the State Government will, as   agreed by it, now forward the modified draft Pay Rules, excluding the  second para of Rule 4, to the Governor for his approval. In view of the  assurance made on behalf of the State Government to give approval to the  modified draft Pay Rules we find no need to issue any mandamus.  As the  matter has been pending for long, we are sure that the State will act with  expedition so that the modified draft Rules will come into force without any  delay and the employees of the High Court will get all their dues in  accordance with the said Rules. With these observations, the writ petition is  disposed of.