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PETITIONER: STATE OF ANDHRA PRADESH & ANR.

       Vs.

RESPONDENT: T. GOPALAKRISHNA MURTHI & ORS.

DATE OF JUDGMENT25/09/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A. GOSWAMI, P.K.

CITATION:  1976 AIR  123            1976 SCR  (1)1008  1976 SCC  (2) 883  CITATOR INFO :  APL        1990 SC 334  (52,53,58,112)  R          1992 SC1546  (11)

ACT:      Constition of  India, 1950, proviso to Article 229 (2)- Fixation of  pay scales of High Court staff-Chief Justice of High Court recommending scales of pay of equivalent posts in Secretariat  of   Government-Requirement  of   approval   of Governor, if only formal.      Andhra Pradesh High Court servise Rules, 1959 Rule 19.

HEADNOTE:      The Chief  Justice of  the High Court of Andhra Pradesh wanted the High Court staff, to be paid at the scales of pay of  equivalent   posts  in  the  Secretariat  staff  of  the Government of  Andhra Pradesh.  The Government did not agree to do  so. The respondents who are members of the High Court service belongin,  to the  categories of Bench Clerks, Lower Division Clerks,  Typists and certain other categories filed a writ  petition in  the High  Court for  a writ of mandamus against the  appellants  directing  them  to  implement  the recommendations of  the Chief Justice of the High Court made to the Government from time to time to fix the pay scales of the various  categories to  which the  respondents belong in accordance with  the scales  of pay  as revised by the State Government in  case of  corresponding categories detailed in Annexure III  of the Andhra Pradesh Secretariat service. The High Court  allowed  the  writ  petition  and  directed  the Government to  give effect  to the  recommendations  of  the Chief Justice  embodied in  the letters  of the Registrar of the High  Court  dated  31-3-1969  and  1-7-1969  with  such allowances and  such  benefits  as  are  admissible  to  the members of  the Secretariat  service in the Secretariat. The High  Court   took  the   view  that  for  the  purposes  of appointments of  officers and servants of the High Court and laying down  the  conditions  of  their  service  the  Chief Justice is  the highest  authority. The  requirement of  the approval of  the Governor  of the State under the proviso to clause (2)  of Article 229 is a requirement of a mere formal approval. The  Government could  not refuse  to accord their approval when  the recommendation  of the  Chief Justice was

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merely for  equation of  pay scales  of the High Court staff with those of the Secretariat’s. The High Court did not rest its judgment  on Rule  19 of  the Andhra  Pradesh High Court Service Rules,  1959. This  appeal has been preferred on the basis of the certificate granted by the High Court.      Allowing the appeal, ^      HELD :  (1) It  is not correct to say that the approval of the  Governor under  the proviso to clause (2) of Article 229 is  a mere  formality and  in no  case it is open to the Government  to  refuse  to  accord  their  approval.  Merely because the  Government is  not right in accepting the Chief Justice’s view  and refusing to accord approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. [1010-D, 1011-E]      M. Gurumoorthy v. Accountant General Assam and Nagaland JUDGMENT: Bhubhan Chandra Dutta and Anr. [1975] 4 S.C.C. 1 relied on.      (ii)  It   is  not  correct  to  say  that  Rule  19(1) authorised the Chief Justice to regulate the pay of the High Court staff in the manner he thought it fit and proper to do without any  further reference to the Governor. There are no such words  to this  effect in  Rule 19(1). The reference to "the Rules  regulating the  pay or  the Services included in the Pay Schedule and other rules for the time being in force applicable to  officers under the rule-making control of the Government of  Andhra Pradesh" was merely a reference to the rules and  not to  the pay  schedules. This was further made clear by the first proviso of Rule 19(1). [1013-B-C] 1009      Observation:- On  the facts and in the circumstances of this case  and in the background of the conditions which are prevalent in  other States  Government could have been well- advised to  accord to  approval the  suggestion of the Chief Justice, as  the suggestion  was nothing more than to equate the pay  scale of  the High  Court staff  with those  of the equivalent posts in the Secretariat. [1001-D]

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2136 of 1972.      From the Judgment and Decree dated the 18th April, 1972 of the  Andhra Pradesh High Court in Writ Petition No. 85 of 1970.      P. Rama  Reddy, P. P. Rao and T. V. S. N. Chari for the Appellant.      S. V. Gupte and A. Subbarao for the Respondents.      The Judgment of the Court was delivered by      UNTWALIA, J.-This  appeal is  by certificate of fitness granted by the Andhra Pradesh High Court. The point concerns the scope  and the  power of the Chief Justice under Article 229(2) of  the Constitution  of India.  The Chief Justice of the High Court wanted the High Court staff to be paid at the scales of  pay of  equivalent posts in the Secretariat staff of the  Government of Andhra Pradesh. The Government did not agree to  do so. The respondents who are members of the High Court service  belonging to  the categories of Bench Clerks, Lower Division  Clerks, Typists and certain other categories filed a  writ petition  in the  High Court  for  a  writ  of mandamus against  the appellants directing them to implement the recommendations  of the  Chief Justice of the High Court made to  the Government  from time  to time  to fix  the pay scales of  the various  categories to  which the respondents

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belong in  accordance with  the scales  of pay as revised by the State  Government in  case of  corresponding  categories detailed in  Annexure III  of the Andhra Pradesh Secretariat service. The  High Court  has allowed  the writ petition and directed   the    Government   to   give   effect   to   the recommendations of the Chief Justice embodied in the letters of the  Registrar of the High Court dated 31-3-1969 and 1-7- 1969  with   such  allowances   and  such  benefits  as  are admissible to  the members of the Secretariat service in the Secretariat.      A few  facts may  be stated  for determination  of  the point  at  issue.  In  April,  1965  a  Pay  Commission  was appointed by  the  Government  to  make  recommendations  in regard to the revision of pay scales of Government employees in the  various services.  The Pay  Commission submitted its report in 1967. In respect of certain categories of the High Court staff, but not all, the Commission recommended to give them  the   pay  scales   of  their   counter-parts  in  the Secretariat.      The Assistant  Secretary  to  the  Government  wrote  a letter dated  12-2-1969 to  the Registrar  requesting that a comprehensive note  together with  the latest  scales of pay obtaining in the other High Courts may kindly be sent to the Government  for   placing  the   same  before  the  Officers Committee for  consideration. A  detailed letter dated 31-3- 1969 was  written by  the Registrar  to the  Government with refer- 1010 ence to  some earlier letters of the High Court and in reply to  the  Government’s  letter  dated  12.2.1969.  Facts  and figures from other States were given to show that in most of the States  the scales  of pay allowed to the members of the High  Court   service  were  identical  with  those  of  the Secretariat staff  and the  Government was asked to agree to the proposal of the Chief Justice to bring the pay scales of the High  Court staff  at par with those of the Secretariat. The matter  was pursued  by the High Court in the Regisrar’s letter dated  1-7-1969 addressed  to the  Secretary  to  the Govt. Finance  (Pay Commission)  Department and  in the D.O. letter dated  23-7-1969 written  by the Chief Justice to the Chief Minister. The Government did not agree to the equation of the scales of pay of the staff of the High Court to those of  the   Secretariat’s.  The  High  Court  was  accordingly informed. Thereupon  respondents filed  the writ petition in January, 1970.      In support  of the  writ petition  reliance was  placed before the  High Court  on the  power of  the Chief  Justice under Article  229 and  Rule 19  of the  Andhra Pradesh High Court Service Rules, 1959 (for brevity, the 1959 Rules). The High Court  has taken  the view  that for  the  purposes  of appointments of  officers and servants of the High Court and laying down  the  conditions  of  their  service  the  Chief Justice is  the highest  authority. The  requirement of  the approval of  the Governor  of the State under the proviso or clause (2)  of Article 229 is a requirement of a mere formal approval. The  Government could  not retuse  to accord their approval when  the recommendation  of the  Chief Justice was merely for  equation of  the pay  scales of  the High  Court staff with  those of  the Secretariat’s.  The High Court has not rested its judgment on Rule 19 of the 1959 Rules.      Mr. Ram  Reddy, learned  counsel for the appellants has assailed the decision of the High Court as being contrary to the two  decisions  of  this  Court  in  M.  Gurumoorthy  v. Accountant General Assam & Nagaland & Ors. (1) and The State of Assam  v. Bhubhan  Chandra Dutta and another(2). The High

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Court has noticed the first decision, but counsel submitted, it has applied it wrongly. Mr. S. V. Gupte appearing for the respondents endeavoured  to support the judgment of the High Court with reference to Rule 19.      Leaving aside  the proviso to clause (1) of Article 229 in the  matter of appointments of officers and servants of a High Court  the power  is of  the Chief  Justice or  of such other Judge  or officer of the Court as he may direct. Under clause (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 are a charge  upon the  Consolidated Fund of the State. Any fees or monies taken by the Court formed part of that Fund. There is no  separate fund or power to raise it at the disposal of the High Court for the purposes of meeting the salaries etc. of the  High Court  staff. In  this context  clause  (2)  of Article 229  may now  be  read  with  the  proviso  appended thereto. 1011           "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." If there  is a law made by the Legislature of the State then subject to that law, otherwise without it, the 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-that  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. On the facts and in the circumstances of this case and in  the background of the conditions which are prevalent in other  States Government  could have been well-advised to accord approval  to the  suggestion of the Chief Justice, as the suggestion  was nothing  more than  to  equate  the  pay scales of  the High Court staff with those of the equivalent posts in the Secretariat. That merely because the Government is not  right in  accepting the  Chief  Justice’s  view  and refusing to  accord the  approval is  no ground  for holding that by a writ of mandamus the Government may be directed to accord the  approval. The  High Court  staff has  not always been treated  at par  with  the  Secretariat  staff  in  the matters of  scales of  pay. The  matter has been taken up in the  Chief  Justices’  Conference  and  with  several  State Governments. Most of them have acceded to the request of the High Court  to bring  its staff  at par with the Secretariat staff in the matter of pay etc. 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

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Government was ultra vires or made mala fide and arbitarily.      In Gurumoorthy’s case (supra) Grover, J. delivering the judgment on  behalf of  the Constitution Bench of this Court has stated at page 429.           "Thus Article  229 has  a distinct  and  different      scheme and  contemplates  full  freedom  to  the  Chief      Justice in  the matter  of appointments of officers and      servants of  the High  Court and  their  conditions  of      service. These  can be prescribed by rules made by him.      Apart from  the special  situation contemplated  by the      proviso to clause (1) the only exception 1012      is that  the Governor’s  approval must be sought to the      extent the  rules relate to salaries, leave or pension.      This exception;  it is abundantly clear, has to be made      because  the  finances  have  to  be  provided  by  the      Government and  to the  extent there is any involvement      of expense the Government has to approve of it". The more  apposite and  direct case  on  the  point  is  the decision of  this Court  in  Bhubhan  Chandra  Dutta’s  case (supra) where  following the  decision in Gurumoothy’s case, Ray, C.  J. has said while delivering the judgment on behalf of the Court at page 5:           "Article 229  of the Constitution confers power on      the Chief Justice of the High Court to appoint officers      and servants  of the High Court. Article 229 (2) states      that 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.  It is  also provided  that the rules made      under Article  229(2) shall,  so far  as they relate to      salaries, allowances,  leave or  pensions, require  the      approval of  the Governor  of  the  State.  It  is  not      disputed that  the appoinment  of Bhubhan Chandra Dutta      by the  Chief Justice  of the High Court at a salary of      Rs. 1,500  per month  with special allowance of Rs. 250      per  month   was  made  without  the  approval  of  the      Governor. If the Chief Justice of the High Court wanted      to appoint  the Registrar  at the initial salary of Rs.      1500 with  a special  salary  of  Rs.  250  per  month,      special approval of the Governor should have been taken      in view  of the fact that the rules did not permit such      salary and the higher salary involved greater financial      burden on  the Government  (See M. Gurumoorthy v. A. G.      Assam & Nagaland)."      We share  the sentiment  expressed by the High Court in its  judgment  and  yet  find  it  difficult  to  allow  our sentiment to  cross the  boundary of  law engrafted  in  the proviso to clause (2) of Article 229.      Rule 19(1)  of the  1959 Rules  on which  reliance  was placed on  behalf of the respondents to sustain the judgment of the High Court has been quoted therein. After quoting the rules, the High Court has said :           "We may  observe in passing that this rule has not      been happily worded. There is reference to the Rules of      1932, the  Rules of 1947, the Rules of 1950 relating to      gratuities, provident  fund etc., and the rules of 1947      relating to scales of pay. Whatever might have been the      power of  the Government in the matter of fixing pay or      making  rules   in  the   pre-constitution  days,  that      position has  changed after the constitution in view of      Article 229 of the Constitution."

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1013 Mr. Gupte  pointed out  that the  1959 Rules  framed by  the Chief  Justice   under  Article   229(1)  and   (2)  of  the Constitution were  with the  approval  of  the  Governor  of Andhra Pradesh  in so  far as the Rules related to salaries, allowances, leave  or pensions.  Rule 19(1)  authorised  the Chief Justice to regulate the pay of the High Court staff in the manner  he thought  it fit  and proper to do without any further reference  to the  Governor. We do not find any such words in  Rule 19(1)  to lead  to the  above conclusion. The reference to  "the Rules  regulating the pay of the Services included in  the Pay  Schedule and  other rules for the time being in  force applicable to officers under the rule-making control of  the Government  of Andhra  Pradesh" was merely a reference to  the rules  and not  to the pay schedules. This was further  made clear  by the  first proviso of Rule 19(1) which reads as follows:           "Provided that  except with  regard  to  salaries,      allowances, leave and pensions, the Chief Justice shall      exercise the powers vested in the Governor under any of      the aforesaid rules;"      For the reasons stated above we do not find it possible to sustain  the judgment  of the  High  Court  in  law.  We, however, trust  and hope that the Government will give their second thought  to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the  matter of pay scales etc. between the High Court and the Secretariat  Staff. There  does not  seem to be any good and justifiable reason for maintaining the distinction.      In the  result the  appeal is allowed but there will be no order as to costs. V.M.K.                                       Appeal allowed. 1014