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PETITIONER: SATNAM SINGH AND ORS.S.K.SINGAL AND ORS.

       Vs.

RESPONDENT: THE HIGH COURT OF PUNJAB AND HARYANA,CHANDIGARH, THROUGH ITS

DATE OF JUDGMENT:       07/02/1997

BENCH: J.S. VERMA, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO.3704 OF 1990                       J U D G M E N T      J.S. Verma, J.      High Court Establishment (Appointment and Conditions of Service) Rules,  1973 (for  short the  "Rules") were made by the Chief Justice of the High Court of Punjab and Haryana in exercise of  powers conferred  by Clause  (2) of Article 229 read with Article 231 of the Constitution of India. By order dated March  18, 1974,  the Chief  Justice of the High Court made these  rules applicable with effect from March 1, 1974; and the rules involving financial implications were referred to the  Central Government through Chandigarh Administration for obtaining  approval as required by the Proviso to Clause (2) of  Article 229  of the  Constitution. It  was expressly mentioned in the order that "all new appointments made after March 1,  1974 have  been regulated  by the  new rules". The Chief Justice  also directed  the office  by the order dated April 19,  1974 to  circulate the  new rules  to the  entire staff and all concerned. Publication of rules in this manner was made  and the  rules, except  those involving  financial implications, came  into force in actual working with effect from March 1,1974. The circulation note dated April 24, 1974 of the Deputy Registrar, Administration clearly records this fact.      Rule 16  of the  above Rules  prescribed the  quota for filling the  posts of  Assistants by  specifying that 50% of the posts  shall be  filled by  direct recruitment  and  the remaining 50%  posts were to be filled by promotion from the clerks on the establishment of the Court. Rule 30 prescribed the method  of determining  seniority. These  rules did  not involve any  financial implications  and  according  to  the aforesaid order  of the Chief Justice of the High Court they were treated as effective from March 1, 1974.      A controversy  has arisen about the date on which rules 16 and  30 came  into  force  because  the  rules  involving financial implications are held to have come into force from a later date. This date  has significance  because the  quota provided  by these rules  was abolished  from January  20, 1978  and  the

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availability of  number of vacancies for the direct recruits would be  more if  the period  of quota rule is longer. Writ petitions filed  in the  High Court have led to the impugned judgment. Neither side is fully satisfied with the decision. Civil Appeal  No. 3704  is  by  promotes  and  Civil  Appeal No.3705 is  by direct  recruits against  the  same  judgment dated February 21, 1989.      As earlier  stated, the  High Court sent a proposal for approval of  the Government to the rules involving financial implications at the time of applying these rules with effect from March  1, 1974  by order  of  the  Chief  Justice.  The proposal for  approval was made only in respect of rules 26, 27 and 34 and Schedules I, IA, II and III of the said Rules. These rules  related to pay, special pay and pension etc. so that they  undoubtedly  related  to  financial  matters  and required the approval envisaged by the Proviso to Clause (2) of Article  229  of  the  Constitution.  The  correspondence between the  High Court  and  the  Government  is  clear  to indicate that  the proposal  for approval  of the Government and the  approval accorded to the same related only to rules 26, 27  and 34  and Schedules  I, IA,  II and  III only. The Government of India, Ministry of Law and Justice (Department of Justice) letter No.30/8/83-Jus., dated September 25, 1985 to  the  Home  Secretary,  Union  Territory  Administration, Chandigarh with a copy to the Registrar, High Court, clearly says that  the approval  of the  President was only to these rules involving  financial implications.  There  can  be  no doubt whatsoever that the entire exercise, from the proposal by the  High Court to approval of the President related only to rules  26, 27  and 34  and Schedules I, IA, II and III of the said  Rules relating  to certain  conditions of  service involving financial  implications and  not to  the remaining rules contained in the High Court Establishment (Appointment and Conditions of Service) Rules, 1973. Our concern in these matters is confined only to the date of enforcement of rules 16 and  30 prescribing the quota for the direct recruits and promotes and  the mode of determination of seniority between them.      The contention  of the direct recruits is that rules 16 and 30  along with  remaining rules  which did  not  involve financial  implications  and,  therefore,  did  not  require approval of  the Government came into force with effect from March 1,  1974 by  order of  the Chief  Justice of  the High Court. On  the other  hand, the  promotes contend  that  the entire set  of rules  came into  force only  on January  23, 1975, the  date of  the notification  which was published in the Gazette  dated February  1, 1975.  The contention of the promotes is  based on  the decision in an earlier litigation which  related  to  applicability  of  the  rules  involving financial implications.  That decision is Sunder Sham Kapoor and others Vs. The Hon’ble Chief Justice, Punjab and Haryana High Court, Chandigarh and others, 1987(4), SLR 460.      As earlier  stated, the  significance of  the  date  on which rules  16 and  30 long with the remaining rules, other than those  sent for  approval of  the Government is for the reason that  the number  of posts  available for recruitment from the two sources - direct recruits and promotes - has to be calculated from that date only. There was no prescription of quota  prior to  that date  and subsequent to January 20, 1978 when  by amendment  made in the Rules the provision for quota  was  abolished.  It  is  only  between  the  date  of enforcement of  the quota  rule and its abolition on January 20,  1978   that  this   question  arises   and  it  assumes significance because  the longer  period of  quota  rule  is beneficial to the direct recruits.

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    In the  present case  the High Court has taken the view that the  commencement of  the entire set of Rules including Rules 16  and 30  was from January 23, 1975 and not March 1, 1974. The  view taken in the earlier decision in Sunder Sham Kapoor has  been followed.  In our  opinion, the significant distinction between  the present case and Sunder Sham Kapoor the subject  matter related  to salaries and allowances with other consequential  benefits and,  therefore, they involved financial implications  governed by the Rules which required approval of the Government in accordance with the proviso to Clause 2  of Article  229. That being so, the rules on which the claim  was based  in Sunder  Sham Kapoor came into force only when  the approval  of the  President was accorded with the direction that the same would be effective from the date of their  issue. The  publication of  the notification dated January 23, 1975 made in the Gazette was, therefore, treated as the  date of  enforcement of  the  Rules  which  required approval of  the President  under the proviso to Clause 2 of Article 229. No such approval was required for the remaining rules including Rules 16 and 30 and, therefore, the order of the Chief Justice enforcing the Rules with effect from March 1, 1974  brought into  force these  remaining rules  on that day. The  distinction has  been overlooked by the High Court in applying  the decision  of  Sunder  Sham  Kapoor  in  the present case also.      The relevant part of Article 229 is as under:      "229. Officers and servants and the      expenses of High Courts.-      (1) xxx   xxx  xxx      (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) xxx   xxx  xxx"      Clause (2)  of Article  229 enacts  that conditions  of service of officers and servants of High Court shall be such as may  be prescribed  by Rules made by the Chief Justice of the Court,  Subject to the provisions of any law made by the Legislature  of  the  State.  The  proviso  carves  out  the exception, requiring  the approval  of the  Governor of  the State only in respect of the rules "so far as they relate to salaries, allowances,  leave or pensions". Thus the approval according to  the proviso  is required  only in  respect  of those rules  which relate  to salaries, allowances, leave or pensions and  not to  other rules relating to the conditions of service  of the  officers and servants of the High Court. To read  the proviso  to require  approval thereunder to the entire set  of rules  including those which do not relate to "salaries,  allowances,  leave  or  pensions"  would  be  to enlarge the  scope of  the proviso  by reading  into it more than what  is enacted  therein. A proviso has to be strictly construed inasmuch  as it  carves out  an exception  to  the

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general rule.  The general  rule enacted in the main part is not to  be unduly restricted by expanding the content of the proviso which  is intended  to carve  out the exception from the general  rule. The  plain words of the proviso to Clause (2) of  Article 229  leave no  doubt that the requirement of approval thereunder  is confined to the rules only so far as they relate  to salaries  etc., and  no more.  It is settled that a  proviso cannot  expand or limit the clear meaning of the main provision.      Viewed at from a different angle the conclusion reached is the  same. It  is open  to the Chief Justice to frame two different sets  of  rules  whereby  the  rules  relating  to salaries, allowances,  leave or pensions are made separately in one  set while  the other set relates to other conditions of service. If the exercise is performed in this manner only that set  of rules  which relates to salaries etc. involving financial implications  requires the  approval according  to the proviso  to Article 229 (2) while the other set does not require any  such approval  and can be enforced by the Chief Justice straight away by his order. The result cannot be any different if  only one  set of  rules is  made by  the Chief Justice incorporating both kinds of rules.      We have no doubt that all the rules framed by the Chief Justice except  for Rules 26, 27 and 34 and Schedules I, IA, 2 and  3 which alone were sent for approval according to the proviso to  clause (2) of Article 229, came into  force with effect from  March 1,  1974 by  virtue of the order of Chief Justice of  the High  Court. This  is  how  the  High  Court understood it  till some  doubt was  created because  of the significant distinction  in  the  decision  in  Sunder  Sham Kapoor being  overlooked. It is, therefore, clear that Rules 16 providing  for the quota and Rule 30 prescribing the mode of determining  seniority came  into force  with effect from March 1,  1974.  The  quota  for  the  direct  recruits  and promotees has to be worked out accordingly and the vacancies have to  be filled on that basis. The High Court is required to calculate  the vacancies  and adjust  the appointments to the vacancies on this basis.      For the  aforesaid reason  the impugned judgment of the High Court is set aside. The High Court would now proceed to calculate  the  number  of  vacancies  available  to  direct recruits  and   promotees  on   this  basis   and  to   make consequential  adjustment   in  the   cadre  of  assistants, accordingly.