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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: BHUBHAN CHANDRA DATTA & ANR.

DATE OF JUDGMENT05/03/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN KRISHNAIYER, V.R.

CITATION:  1975 AIR  889            1975 SCR  (3) 854  1975 SCC  (4)   1  CITATOR INFO :  R          1976 SC 123  (5,7)

ACT: Assam   and  Nagaland  High  Court  Services   (Appointment, Conditions  of Service and Conduct) Rules, 1956. rr.  3  and 11--Scope of--Power of Chief Justice to fix special pay  and allowance of Registrar.

HEADNOTE: Under   the   Assam  and  Nagaland   High   Court   Services (Appointment,  Conditions  of Service  and  Conduct)  Rules, 1956, the initial pay of the Registrar of the High Court was Rs.  850/-  per  month.  Under r. 3(1), when  the  post  was filled up from the judicial service, it will carry a special pay.   The  Chief Justice had also power under the  rule  to fix,  without  the previous approval of  the  Governor,  the initial  pay  up  to  Rs.  1200/-  per  month  according  to experience etc.     Subsequently,   the  rule  was   altered authorising the Chief Justice to fix the     initial    pay, without  the approval of the Governor, up to Rs.  1180/-.The State,    Government revised the pay scale of the  Registrar with  effect from 1st April, 1964 and fixed the initial  pay at Rs. 1200/-, A special pay was also sanctioned if fie  was home  on  the judicial service. but no change  in  Y.  3(1), authorising  the Chief Justice to fix the initial salary  up to Rs. 1180/per month was made, On April 28, 1967, the respondent, who had retired from  the judicial  service  and  was holding the  post  of  Presiding Officer.   Industrial Tribunal, was appointed  Registrar  of the High Court and the Chief Justice fixed a special initial salary of Rs. 15001-. that is. at the maximum of the  scale, and a special allowance of Rs. 250/-. On  the  question  whether the fixation of  the  salary  and special allowance was valid the High Court held in favour of the respondent on the grounds that, (a) because in the  past the  Chief  Justice  could appoint the  Registrar  with  the special pay of Rs. 1200/- or Rs. 1180/- when the initial pay was Rs. 850/-, that is, he could give six increments of  Rs. 50.  the Chief Justice could now appoint the Registrar  with the  special pay of Rs. 1500/- when the initial pay was  Rs. 1200/- by giving five increments of Rs. 60; and (b) when the

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initial  pay  itself was Rs. 1200/- the power of  the  Chief Justice   to  fix  a  special  pay  of  Rs.  1180/-   became meaningless and _must be read is Rs. 1500/-. Allowing the appeal to this Court, HELD : (1) The reasoning of the High Court was wrong and  no such  power could be implied in the Chief Justice.   If  the Chief  Justice  wanted  to appoint the  Registrar  with  the special salary of Rs. 1500/- and special allowance, approval of  the Governor should have been taken under  Art.  229(2), because the rules do not permit such a salary and the higher salary involves greater financial burden on the  Government. [857G-858B] M.   Gurumoorthy  v. Accountant General Assam &  Nagaland  & Ors. [1971] Supp.   S.C.R. 420 followed. (2)  Further,  r. 3(1) conferred power on the Chief  Justice to  fix the special allowance only when the post  is  filled from  the  members  of the judicial service.   The  post  of Presiding  Officer, Industrial Tribunal was included in  the Assam Judicial Service only on August 17, 1967, and not when the  respondent  was appointed as a Registrar  of  the  High Court.   That apart, it is indisputable that the  respondent had retired from the State Judicial Service and it could not be  said  that  such  a retired person  was  member  of  the Judicial Service or was borne on the service. [858D-F] (3)  Rule II is a general rule and is not applicable to  the appointment  and fixation of pay and special  allowances  of the Registrar because there is specific                             855 provision,  namely, r. 3(1) for the post of Registrar  which prevails  over the general rule.  Moreover. r. 11 must  also be read subject to the proviso to Art. 229(2) which requires the  approval  of the Governor for fixing  pay  etc.   Also, Fundamental Rule 19 does not permit any such fixation in the teeth of r.    3(1) on the strength of r. 11. [859C-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1547  of 1969. Appeal  by Special Leave from the Judgment and  order  dated the  19th  May, 1969 of the Assam & Nagaland High  Court  in Civil Rule No. 126 of 1969. Moinul Haque Choudhary and Naunit Lal, for the appellant. Sarjoo Prasad, and S. N. Prasad, for respondent no.1 P. P.Rao and S. P. Nayar, for respondent no. 2. RAY,  C.J.-This appeal by Special leave raises the  question as  to whether the appointment of the Registrar of the  High Court  of  Assam  at a special salary  of  Rs.  1500/-  with special allowance of Rs. 250/is valid. On 28 April, 1967 Bhubhan Chandra Dutta was appointed Regis- trar  of the High Court of Assam.  "Me appointment was  made by the Chief Justice of the Assam High Court in exercise  of powers conferred by Article 229 of the Constitution of India and  Rules  7  and 13 of the Assam  &  Nagaland  High  Court Services  (Appointment, Conditions of Service  and  Conduct) Rules, 1967. The  order of appointment of the Registrar was as follows  : "He  shall be entitled to draw an initial pay of  Rs.  15001 per month less the pension, if any, he has been drawing from the  Government.   Ho  shall, in addition  to  the  pay,  be entitled  to  draw  a special pay ’of Rs.  250/-  per  month admissible  under  the Rules to the Registrar  of  the  High Court.   He shall hold the appointment for a minimum  period of  two  years  in the first  instance.   This  period  may,

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however, be extended as considered suitable and necessary by the Chief Justice." It  may  be  stated  here that  Bhubhan  Chandra  Dutta  had previously  been  Additional  District Judge  and  also  the Registrar  of  the  High Court.  On  1  July,  1958  Bhubhan Chandra Dutta attained the age of 55 years.  He was then the Registrar  of the High Court.  He was given an extension  of one  year.  On 1 July, 1959 he retired as Registrar  of  the High Court. On  25  July, 1968 the Deputy Registrar of  the  High  Court under  the  direction  of the Chief  Justice  wrote  to  the Secretary  to the Government of Assam in the Law  Department to instruct the Accountant General to issue provisional  pay slip  to  Bhubhan Chandra Dutta for Rs. 1500/- as  pay  plus special pay of Rs. 250/-.  On 2 August, 1968 the  Accountant General issued a provisional pay slip for the period 1  May, 1967  to 31 October, 1967 authorising Bhubhan Chandra  Dutta to draw a sum of Rs. 870.75 as provisional pay.  The special pay of Rs. 250/- was not included in the pay slip. Bhubhan  Chandra Dutta thereafter filed a writ  petition  in 1969  in  the  High Court at Assam for a  mandamus  to  give effect  to the notification dated 28 April  1967  appointing him to the post of Registrar 856 fixing  the  pay  and special pay allowable  to  him  and  a further  mandamus  on  the  Accountant  General,  Assam  and Nagaland,  Shillong  to issue pay slip  to  Bhubhan  Chandra Dutta  for  the full amount payable to him in terms  of  the said notification. The High Court issued a mandamus directing the appellant  to issue  pay slip to Bhubhan Chandra Dutta at the rate of  Rs. 1500/per  month minus his pension and a special pay  of  Rs. 250/-  per month.  Bhubhan Chandra Dutta, according  to  the mandamus  issued by the High Court, became entitled  to  the said  salary as Registrar for two years with effect  from  1 May, 1967. There   is  no  dispute  that  under  Article  229  of   the Constitution the appointment of the Registrar is to be  made by  the Chief Justice of the High Court.  It may  be  stated here that under Rule 7 of the Assam and Nagaland High  Court Services  (Appointment, Conditions of Service  and  Conduct) Rules,  1967,  a  person  who had  retired  from  the  State Judicial Service Grade I could be appointed Registrar.   The only question is whether the Chief Justice had authority  to appoint  the  Registrar at a salary of Rs. 1500/-  p.m.  and special  pay  of  Rs. 250/- p.m. In view of  the  fact  that Bhubhan Chandra Dutta had already retired from the  Judicial Service  and was drawing pension, it is common  ground  that the pension that he was drawing was to be deducted from  the salary of Rs. 1500/-. Under  the Assam and Nagaland High Court Services  (Appoint- ment,  Conditions of Service and Conduct) Rules,  1956,  the pay  scale  of the Registrar was at  Rs.  850-50/1-1500  per month.  The relevant Rule 3(1) of the 1956 Rules provided as follows  : "The post of the Registrar, when filled  up  from the Service will carry a special pay of Rs. 150/- per mensem in addition to the Grade pay as admissible to the members of the  Assam Judicial Service (Senior) Grade I. In  any  other case  the Chief Justice will have power to fix, without  the previous approval of the Governor, the initial pay up to Rs. 1200/- a month according to the experience, ability and  age of the person concerned." Subsequently the. pay scale was fixed at Rs.  850-50-1000.-- 60-1300--EB-50--1500.  With the said change in the pay scale there   was   a  consequential  alteration  in   Rule   3(1)

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authorising  the  Chief  Justice to  fix  the  initial  pay, without the approval of the Governor up to Rs. 1180/-. Therefore,  under  the 1956 Rules the  Chief  Justice  could appoint  a Registrar at the initial pay up to Rs.  1200/-  a month  without the previous approval of the Governor.   When the  pay  scale was subsequently changed the  Chief  Justice could  similarly  fix  the initial.  pay  of  the  Registrar without the approval of the Governor at Rs. 1180/-. The  Government revised the pay scale of the Registrar on  4 September,   1967.    The   revised  pay   scale   was   Rs. 1200-60-1380-EB-601500.  This revision was however made with effect  from  1 April, 1964.  With effect from that  date  a special pay was also sanctioned if the Registrar was home on the  Judicial Service.  It should be stated here  that  when the pay scale was revised in 1967 there was no 857 change  in  Rule 3(1) which as it stood then said  that  the Chief Justice could fix the initial salary at Rs. 1180/- per month. The  High  Court  held  that when the  initial  pay  of  the Registrar became Rs. 1200/- the authority to fix the initial pay  at  Rs. 1180/- became meaningless, and,  therefore,  by implication  the  figure of Rs. 1180/should be read  as  Rs. 1500/-.   The reason given by the High Court was  that  when the  Chief Justice could fix the initial pay at  Rs.  1180/- under the Rules the Chief Justice could allow six increments at  the time of initial appointment.  There Core,  according to  the High Court, when the initial pay became  Rs.  1200/- the  authority  to fix the initial pay would be  Rs.  1500/- because the Chief Justice could grant six increments at  the time of initial appointment.  The High Court also said  that though  six increments at the rate of Rs. 60/would  make  it Rs. 1560/-, the sum of Rs. 1500/- should be adopted  because that was the highest pay. When  in  1967 the pay scale of the  Registrar  was  revised there was no corresponding alteration in the Rules that  the Chief Justice would have power to fix, without the authority of the Governor, the initial pay at Rs. 1500/-. At  no stage could the Chief Justice fix the initial pay  up to  the maximum of the scale of pay which remained  constant at   Rs.  1500/all  throughout,  notwithstanding   the   two revisions  in  the  scale of pay.  On  the  other  hand,  it appears  that at no time the Chief Justice was empowered  to fix the initial pay higher than Rs. 1200/-.  When the  scale of  pay was revised in 1964 it is significant to  know  that the  power of the Chief Justice to fix the initial  pay  was reduced from Rs. 1200/’- to Rs. 1180/-. Just because the initial pay of the Registrar in 1967 became Rs. 1200/- and with five increments the salary would be  Rs. 1500/no  implication  can arise on the power  of  the  Chief Justice  to appoint the Registrar at the initial pay of  Rs. 15001-.  The reasoning of the High Court that because in the past  under  the Rules the Chief Justice could  appoint  the Registrar at the initial pay of Rs. 1200/- or at Rs. 1180/’- which  showed  that  the initial pay of Rs.  1200/-  or  Rs. 1180/-   gave  six  increments  at  the  time   of   initial appointment,  there is no warrant for implying the power  to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it  would carry increments. 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  the  service  of  officers  and

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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 appointment of Bhubhan Chandra  Dutta by  the Chief Justice of the High Court at a salary  of  Rs. 1500/-  per  month with special allowance of Rs.  250/-  per month was made without 858 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.  Accountant General Assam & Nagaland & Ors. (1971) Supp.  S.C.R. 420). The special pay of Rs. 250/- per month which was granted  by the  Chief Justice to the Registrar by his order dated  28th April,  1967 was impeached by the State on the  ground  that Rule  3(1) conferred power on the Chief Justice to  fix  the special pay only when the post is filled from the members of the  Assam  Judicial  Service  (Senior)  Grade  I.  It   was contended  by  the State that Bhubhan Chandra Dutta  at  the time  of his appointment on 28 April, 1967 had retired  from service  and  he was no longer a member of the  Service  and therefore he was not entitled to any special pay. On behalf of Bhubhan Chandra Dutta it was said that he  was, at  the time of appointment of the Registrar, the  Presiding Officer,  Industrial  Tribunal,  and, therefore,  he  was  a member of the Judicial Service.  The High Court  interpreted Rule  3(1)  to mean that whoever will be  appointed  as  the Registrar  will be a member of the State  Judicial  Service, and, therefore, Bhubhan Chandra Dutta on being appointed  as the Registrar was entitled to the special pay of Rs. 250/per month.   On  28 April, 1967 when Bhubhan Chandra  Dutta  was appointed as the Registrar of the High Court the post of the Presiding  Officer, Industrial Tribunal was not included  in the  Assam Judicial Service (Senior) Grade I. Ibis post  was included in the Assam Judicial Service on 17.  August, 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service ,on 28 April,  1967. It could not, therefore, be said that a retired man can be a member  of  the Judicial Service or shall be  borne  on  the service. Counsel   on  behalf  of  Bhubhan  Chandra  Dutta   in   the alternative  submitted that under Rule II of the  Assam  and Nagaland  High  Court Service Rules the  Chief  Justice  had power to fix the pay of Rs. 1500/and the special pay of  Rs. 250/-  per month.  Reliance was also placed  on  Fundamental Rule  19.   Rule  1 1 and Fundamental Rule 19  are  set  out hereunder :- Rule 11               (i)   In  regard  to  pay,  allowances  leave,               leave   salary  or  pension,  the  Rules   and               Regulations  applicable to the members of  the               services  under the rule making power  of  the               Government  of  Assam  shall  apply,   mutatis               mutandis to persons serving in this High Court               and  subject  also  to  such  amendments   and               variations as may be made by the Chief Justice               from  time  to time with the approval  of  the

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             Governor, where necessary.               Provided  that the powers  exercisable  under.               the  said rules and orders by the Governor  or               by any authority sub-                                    859               ordinate to the Governor shall be  exercisable               by  the Chief Justice or by such person as  he               may, by special or general order direct.               (ii)  Any  question arising as to which  rules               or  orders are applicable to the case  of  any               person  serving on the staff attached  to  the               High Court shall be decided by the Chief               Justice".               F.R. 19               "The fixation of pay is within the  competence               of  the Provincial Government; provided  that,               except in the case of personal pay granted  in               the  circumstances defined in  Rule  9(23)(a),               the  pay of a Government servant shall not  be               so  increased as to except the pay  sanctioned               for  his  post  without  the  sanction  of  an               authority  competent to create a post  in  the               same  cadre on a rate of pay equal to his  pay               when increased". The High Court held that the Chief Justice under Rule 11 (i) read  with  Fundamental  Rule 19 could fix the  pay  of  the Registrar at Rs. 1500/-.  Rule 1 1 is not applicable to  the appointment  and  fixation  of pay and special  pay  of  the Registrar  because  there  is  a  specific  provision   made exclusively  for  the  post of  the  Registrar.   Rule  3(1) Prevails over Rule 11 which is a general rule.  The revision of  pay scale from time to time since 1956 cannot alter  the content  and  meaning  of Rule 3(1).  The  revision  of  pay scales cannot have the effect of transferring the power from Rule 3(1) to Rule 11.  Further Rule 11 must be read  subject to  the proviso to Article 229(2) of the Constitution.   Any fixation  of pay by the Chief Justice apart from  Rule  3(1) requires the approval of the Governor.  Fundamental Rule  19 does  not  permit the fixation of pay in the teeth  of  Rule 3(t) on the strength of Rule 11. The  High  Court  was wrong in  granting  a  mandamus.   The Respondent  Bhubhan Chandra Dutta was entitled only  to  the initial  pay of Rs. 1200/- less pension and  gratuity.   The amount  was  calculated  by the Accountant  General  at  Rs. 870.75.  Bhubhan  Chandra  Dutta was  not  entitled  to  any special pay. For  these  reasons the judgment of the High  Court  is  set aside.   The  appeal is accepted.  The rule granted  by  the High  Court  is discharged.  In view of the  fact  that  the appeal  is by special leave we need not express any  opinion on  the contention advanced on behalf of the State that  the High  Court  should  not have entertained  a  writ  for  the enforcement of a contractual claim or a monetary claim. This Court at the time of granting the special leave made an order that the Respondent Bhubhan Chandra Dutta would be  at liberty  to withdraw Rs. 1000/- out of the security  amount. Save  aforesaid,  the parties will pay and  bear  their  own costs. V. P. S.                     Appeal allowed.. 860