Allowed

P.C.Sahajan v. State of Kerala

Kerala HC5 Dec 2018WP(C)/17938/2018

Case brief

AI extract

What is this about?

The High Court held that the Government cannot deny approval to pay revision rules framed by the Chief Justice under Article 229(2) without cogent reasons or sufficient justification. The Court set aside the Government orders refusing the Selection Grade for High Court Library Assistants and directed reconsideration.

What did the court decide?

Exhibits P7 and P10 set aside regarding denial of Selection Grade; direction to 1st Respondent to reconsider and pass orders within four months.

P.C.Sahajan Vs State of Kerala — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940

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WP(C).No. 17938 of 2018-R

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PETITIONER/S:

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1 P.C.SAHAJAN LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.

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2 JOHNY K.P. LIBRARY ASSISTANT (SENIOR GRADE),HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.B.ANANJANA SMT.K.N.REMYA SMT.L.AMMU PILLAI SMT.L.ANNAPOORNA SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.V.VARGHESE

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN695001.

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2 HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL, ERNAKULAM, KOCHI, PIN-682031.

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SRI.ELVIN PETER,SC,H/C, SRI.RON BASTIAN,GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.17938/2018

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JUDGMENT

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The petitioners are Library Assistants (Senior Grade) working in the High Court of Kerala. The grievance of the petitioners is over the refusal on the part of the Government in accepting the recommendations made by the Pay Revision Commission as well as the rules issued by the Honourable the Chief Justice under Article 229 of the Constitution of India to the extent it relates to the Library Assistants by which the post of Selection Grade for the Library Assistants was recommended on par with the common pool Librarians.

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2. There are altogether 12 Library Assistants in

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the High Court of Kerala. The petitioners submit that total number of books in the High Court Library was less than One Lakh in the year 2000. The number of Library Assistants was 12 at that time and it continues to be the same in the year 2018 also, though the number of books increased to 1,75,000 in the year 2016 and 1,88,000 in the year 2018. As early as on 25.04.2005,

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the Registrar of the High Court had addressed the Government requesting to grant four grades to the post of Library Assistants in the ratio of 1:1:1:1 ie. Selection Gr.Library Asst., Senior Gr.Library Asst., Library Assistant Gr.I and Library Asst.Gr.II. In answer to that the Government had informed as per Ext.P5 letter dated 05.09.2005 that the matter would be taken up before the Committee for revision of pay and allowance of the High Court Staff. In the year 2006 when the Pay Revision Orders were issued there was no modification with respect to the higher grades for the staff of the Library. Thereafter the petitioners along with other Library Assistants submitted Ext.P4 representation requesting for allowing Senior Grade and Selection Grade to the Library Assistants pointing out the work load in the Library, the qualification prescribed for Library Assistants viz Degree and Library Science, the scale of pay in which they are drawing despite higher qualification and heavy workload, on the ratio of 3:2:1 between different grades. They had pointed out that there would not be

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much financial implications on revision of the ratio in respect of higher grades from 3:2:1 to 1:1:1:1. After considering the representations submitted by them the 10^th Pay Revision Commission recommended their case as

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follows:

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“19. There is only three grades for Library Assistants, where as common pool Library Assistants have four grades. Hence one more grade by name Selection Grade Library Assistant may be created on Rs.15380-25900 (pre0revision) with corresponding revision. The ratio among the four grades will be 2:2:1:1 from Library Assistant to Selection grade Library Assistant”.

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3. Corresponding scale of pay which should be

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granted to the post of Selection Grade Library Assistant was also recommended under item No.66 as Rs.30700-62400. Recommendations of the Pay Revision Commission on revision of pay of the staff of the High Court was considered by a Committee of Judges constituted by the Honourable the Chief Justice and on the basis of recommendations of that Committee the Honourable the Chief Justice framed Rules under Article 229 of the Constitution of India in respect of Pay and Allowance of Staff of High Court and those rules were

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forwarded to the Government as per Ext.P6 letter dated 06.11.2015. Recommendations in respect of the Library Assistants were as recommended by the Pay Revision Commission. However when orders were issued by the Government as per Ext.P7 on 20.06.2016 according sanction for revision of pay, Selection Grade was not sanctioned to Library Assistants as recommended by the Pay Revision Commission. There were only Senior Grade Library Assistant in the scale of pay of Rs.2780059400, Higher Grade Library Assistant in the scale of pay of Rs.26500-56700 and Library Assistant in the scale of pay of Rs.22200-48000. The ratio between various grades of Library Assistants continues to be 3:2:1. Aggrieved by this petitioners submitted Ext.P8 representation before the Registrar General of the High Court and thereafter the matter was taken up with Government in Ext.P9 letter in which it was pointed out that the refusal to act upon the Rules issued by the Honourable the Chief Justice and forwarded to the Governor was not at all proper and there was no justifiable reason for not granting approval. Even

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though various judgments of the apex court and this Court in respect of the impact of the recommendations of the Honourable the Chief Justice were pointed out, it was rejected as per Ext.P10 order dated 28.04.2018;

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at the same time Government had issued orders rectifying the anomalies in respect of certain posts. In Ext.P10 as against the case of the petitioners it was stated that “ as per general decision taken on revision of scale of pay and allowances, creation of new grade and newly proposed ratio based promotions is not allowed. Hence the recommendation cannot be agreed”.

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4. The petitioners pointed out that it has been a usual practice that in order to accept the rules framed by the Honourable the Chief Justice under Article 229, the staff of the High Court have to approach this Court and even the judgments wherein such rectification of anomaly is directed, are complied with only after filing contempt of court cases. Petitioners illustrate these contentions producing Ext.P11 order issued on

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14.12.2016 in the case of the Chief Librarian of the

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High Court that too in respect of the revision of pay. Pointing out Ext.P12 order issued by the Government on 20.01.2016 revising the pay and allowance in respect of the employees under the Government, petitioners pointed out that Library Assistants in the common pool Library are having all the four higher grades. It is pointed out that the ratio between various higher grades in Government service with respect to several posts have been modified by the Government as can be seen from Ext.P12 order. In Ext.P12 it is seen that ratio between various grades of LD Typists have been modified as 1:1:1:1. Similarly in the case of Lift Operators the ratio has been modified from 3:1 to 2:1. Therefore it is pointed out that the reason stated in Ext.P10 is not correct. Relying on the judgment in K.G.Rajmohan vs. State of Kerala : 2013 (3) KLT 803 and Article 229 of

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the Constitution of India, it is pointed out that the petitioners are entitled to get Selection Grade as recommended in the Pay Revision Commission as well as in the rules framed by the Chief Justice.

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5. Respondents filed a counter affidavit in tune

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with Ext.P11 order. It is stated that the State is going through a precarious financial position and creation of a new grade-Selection Grade Library Assistant with higher scale of pay is not possible. According to them as per the general decision taken on revision of scale of pay and allowances, creation of new grade and newly proposed ratio based promotions cannot be allowed.

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6. Heard the learned Counsel for the petitioner and the learned Government Pleader. The conditions of services including those relating to the pay and revision of pay of High Court staff are governed by the rules issued by the Honourable the Chief Justice of that High Court. Rules in respect of pay and allowances, pension and leave, requires approval of the Governor, as provided in Article 229(2) and (3) of the Constitution of India, which reads as follows:

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229. Officers and servants and the expenses of

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High Courts .—(1) xxxxx

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(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

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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) 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, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.

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7. The issue regarding revision of pay of High Court staff, the impact of rules framed under Article 229 of the Constitution of India, etc had been the subject matter of consideration in a series of judgments of the apex court and this court. In Supreme Court Employees’ Welfare Assn. v. Union of India: (1989) 4 SCC 187 , the apex court while considering the case of Supreme Court employees which are governed by provisions in pari materia with rules under Article 229(2) held that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. It was held that before declining approval, there must be exchange of thoughts between the

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President of India and the Chief Justice of India.

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8. Following the aforesaid judgment this Court in

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High Court Non-Graduate Staff Association v. State of Kerala: 1997 (2) KLT 665, while considering a more or less identical issue in respect of pay scale, higher grades, etc of Typists of the High Court, held that when equality between corresponding categories of posts was recognised and maintained by the State Government, there must be good reasons to deny the same to the employees in the High Court, as it would amount to discrimination. In respect of the rules framed under Article 229(2), it was observed that a constitutional obligation is cast on the Chief Justice of a High Court to get the approval of the Governor of a State and that constitutional duty is vested in the Governor to grant approval to such request. However it was observed in the event of any situation where the Governor of the State is of the view that approval can not be granted, there should be exchange of views between the Chief Justice and the Governor. In effect it was held that the request made by the Chief Justice

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of the State would be looked upon by the Governor with respect and unless there is very good reason not to grant approval, the approval should always be granted.

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9. The circumstances arising in this case are also

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similar. The Pay Revision Commission made the recommendation taking note of the ratio between different grades available for the posts of Library Assistants under the Government and the difference in the ratio as well as the non-sanctioning of a Selection Grade to those in the High Court. Therefore the action of the respondents in denying approval in the case of the staff of the High Court on the ground of any general decision not to sanction cannot be the correct approach towards the Rules under Article 229(2).

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10. In High Court of Judicature for Rajasthan v.

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Ramesh Chand Paliwal : (1998) 3 SCC 72, while considering an identical issue on revision of pay the apex court reiterated that once the Chief Justice, has taken steps for creation of posts or fixation of pay of

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the staff of the High Court, in order to ameliorate

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their service conditions, in the interest of administration, the State Government would not normally raise any objection to it especially when the scale of pay of the equivalent post in the Government has been revised. In High Court Employees Welfare Assn. v. State of W.B: (2004) 1 SCC 334, the apex court cautioned the Government to bear in mind that the rules are framed by the Chief Justice having regard to the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate and that if such needs of the High Court are not met, the administration of the High Court will face severe crisis. Similarly, the apex court in Union of India v. S.B. Vohra: (2004) 2 SCC 150, after discussing

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a series of such judgments on similar matters, reiterated the position as follows:

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“It is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties”.

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Regarding the refusal to approve revised scale of pay on the ground of financial implications, apex court in

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paragraph 48 of the judgment held as follows:

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“It has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-à-vis the effect of grant of a particular scale of pay to the officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms; one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office.

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11. The Pay Revision Commission recommended

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Selection Grade to the Library Assistants seeing that

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such Selection Grades are already sanctioned for the Library Assistants under the Government Departments. The counter parts of petitioners in the Common Pool under the Government continue to enjoy 4 grades. Therefore denial of approval for revision of the ratio sanctioning Selection Grade in the case of Library Assistants of the High Court is irrational. Therefore the reasons stated in Ext.P10, cannot be said to be one sufficient in order to reject a request made under

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Article 229(2). When approval is declined on the basis of a general decision, it would indicate that the rules framed by the Chief Justice was not given due respect as envisaged in the Constitution of India and as held in the aforesaid judgments. In the absence of sufficient reasons, the request of the Chief Justice for revision of pay in the case of Library Assistant was not liable to be rejected, as rightly pointed out by the learned counsel for the petitioners relying on the judgment in K.G.Rajmohan vs. State of Kerala : 2013 (3) KLT 803.

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12. The question of financial implications raised in the counter affidavit, (though not stated in Ext.P10) can also be a ground sufficient to decline approval as held by the apex court in the judgment in S.B. Vohra's case (supra). When the rules framed under Article 229(2) were forwarded to 1^st respondent, as early as in 2015 and orders were issued in June 2016, the respondents cannot evade from their responsibility under the guise of precarious financial conditions on

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account of subsequent events or on reasons not stated

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in Ext.P10. Moreover there would not be much financial implications considering the number of Library Assistants who would be benefited.

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13. Therefore I am of the view that Government has

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not considered the case of the petitioners in the correct perspective. It is highly unfortunate that even after a series of judgments of this court and the apex court, on the impact of the recommendations made and the rules framed by the Chief Justice of a State under Article 229(2), the approach of the Government continues to be the same, treating the same on par with that of the heads of Public Sector Undertakings, which is liable to be deprecated.

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In the circumstances stated above Exts.P7 and P10 to the extent those relates to the denial of Selection Grade to Library Assistants are set aside. There shall be a direction to the 1^st respondent to reconsider Ext.P9, in tune with Ext.P6 rules to the extent it relates to grant of Selection Grade to Library Assistants and to pass orders, taking note of the aforesaid observations, within a period of four months

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from the date of receipt of a copy of the judgment.

Sd/-

P.V.ASHA

JUDGE

rkc

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE LETTER 16777/2005 DATED 25-04-2005 OF RESPONDENT.	NO.A2- THE 2ND
EXHIBIT P2	TRUE COPY OF THE GOVERNMENT NO.22542/C2/2005/HOME DATED 05-0	LETTER 9-2005.
EXHIBIT P3	TRUE COPY OF THE RELEVANT EXT	RACT OF
	G.O.(MS)NO.230/2006/HOME DATED 2006.	26-12-
EXHIBIT P4	TRUE COPY OF THE REPRESENTATION	WITHOUT
	ITS ENCLOSURES SUBMITTED PETITIONERS AND OTHER	BY THE LIBRARY
	ASSISTANTS OF THE HIGH COURT BE CHAIRMAN OF THE 10TH PAY COMMISSION.	FORE THE REVISION
EXHIBIT P5	TRUE COPY OF THE RELEVANT EXT 10TH PAY REVISION COMMISSION REP	RACT OF ORT.
EXHIBIT P6	TRUE COPY OF D.O. LETTER N 49631/2014 DATED 06-11-2015.	O.FW/J3-
EXHIBIT P7	TRUE COPY OF THE RELEVANT EXT	RACT OF
	G.O.(P)NO.180/2016/HOME DATED 2016.	20-06-
EXHIBIT P8	TRUE COPY OF REPRESENTATION DA 07-2016 SUBMITTED BY THE PET AND OTHER LIBRARY ASSISTANTS BE 2ND RESPONDENT WITHOUT ITS ENCLO	TED 25- ITIONERS FORE THE SURES.
EXHIBIT P9	TRUE COPY OF THE RELEVANT EXT LETTER NO.FW/J3-49631-2014 DATE 2016 OF THE 2ND RESPONDENT.	RACT OF D 07-01-
EXHIBIT P10	TRUE COPY OF G.O.(P)NO.19/2 DATED 28-04-2018.	018/HOME
EXHIBIT P11	TRUE COPY OF THE G.O.(MS)NO.315 DATED 14-12-2016.	/16/HOME

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EXHIBIT P12 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(P)NO.7/2016/FIN DATED 20-01-2016.

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RESPONDENTS' EXHIBITS: NIL

P.C.Sahajan v. State of Kerala

Case brief

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P.C.Sahajan v. State of Kerala

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