Class Iv Employees Association, High Court of Judicature and anr. Vs. State of U.P. and ors. - Court Judgment

Excerpt:
- - there cannot be any doubt or dispute whatsoever that determination of different scales of pay for different categories of employees would ordinarily fall within the realm of an expert body like the pay commission or pay committee. a bare perusal of the aforementioned provision would clearly go to show that laying down the conditions of service applicable in the case of staff and officers of a high court is within the exclusive domain of the chief justice but in case of any financial implication involving therein the approval of the state governor is imperative. having regard to the high position and status enjoyed by the chief justice, it was observed, his recommendations. should ordinarily be approved by the state and refusal thereof must be for strong and adequate reasons. the committee also recommended the pay-scale of class iv employees. it transpires that a high power committee involving officers of the high court and the state government was constituted, which met on 21st may, 2005 in which a decision was taken that the high court should review its recommendation since the finance department of the state government was of the opinion that the pay scale recommended by the high court for its class iv employees was different and higher than the pay scales of the class iv employees of the state government which would also create financial problems on the state exchequer. the said minutes were placed before the chief justice, who by an order dated 1.8.2005, directed the registrar general to place the minutes before the four judges committee, which had made the relevant recommendations and further placed a note of absolute disapproval of the minutes to the effect that the pay-scale which had been recommended, if allowed to continue, would not create any financial complications. the learned counsel submitted that once the rules framed by the chief justice are sent to the state government for approval, the state government is required to perform a ministerial task and is required to approve the rules unless there are strong and cogent reasons for disapproving the draft rules. the additional advocate general, further submitted that, in any case, the difference in the pay scale being recommended by the chief justice would create an anomaly and further impose a financial burden upon the state exchequer and therefore, it was not possible to approve the rules. 1999 (3) scc 217. the additional advocate general submitted that the rules recommended by the chief justice would create financial burden upon the state government and would violate the resolution of 1962 and, consequently, the rules cannot be approved. 20. the learned counsel for the high court further submitted that pursuant to the decision of the supreme court, the chief justice constituted a committee of four hon'ble judges, and that, the committee, after considering all aspect of the matter and after considering the work performed by the class iv employees, their duties and responsibility, recommended the pay scale. 1989 (4) scc 187, the supreme court held that when a rule is framed by the chief justice, it should ordinarily be approved since the rules has been framed by a very high dignitary and should be looked upon with respect unless there was a good reason for not approving the reasons. it is true that the president of india cannot be compelled to grant approval to the rules framed by the chief justice of india relating to salaries, allowances, leave or pensions, but it is equally true 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. the supreme court has further held that the governor cannot be compelled to grant approval, but, further held that whenever the chief justice, who is a very high dignitary of the state, frames such rules, it should be looked upon with respect and ordinarily, the rules should be approved unless there are strong and cogent reasons for not approving. on the other hand, the state government has taken a decision not to grant approval of the pay scale recommended by the chief justice for the class iv employees. (supra), the supreme court has held that financial implications cannot be made a ground to disapprove the rules. one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. union of india as well as the report of the shetty commission. the court finds from a perusal of the record of the state government that no attempt was made to ascertain the nature of work performed by a class iv employees of the high court whereas the four judges committee has dwelt the matter in detail and ascertained the nature of work of an employee in each category of staff of the high court and only thereafter determined the pay structure and recommended the same to the chief justice. the record does not indicate that the chief minister or the council of ministers has disapproved the recommendations and, it transpires, that the impugned order has been passed by the principal secretary on its own accord. jagganath 1986 (2) scc 679: there is thus no doubt that the high courts in india exercising their jurisdiction under article 226 have the power to issue a writ of mandamus or as writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a police decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such direction has been conferred. by placing fetters in raising frivolous objections, the state government failed to perform its duty.tarun agarwala, j.1. by means of this petition, the petitioners have prayed for the quashing of the order dated 28.2.2007, passed by the principal secretary (nyay) whereby the recommendation of the chief justice for the enhancement of the pay scale of class iv employees of the high court, made under article 229(2) of the constitution of india, has been refused. the petitioners have also prayed for the quashing of the resolution dated 29.7.2006 made by a high powered committee comprising of the officers of the high court and officers of the state government, which was constituted to sort out the differences with regard to the proposed enhancement of the pay scale. the petitioners have also prayed that a mandamus be issued to the state government to implement the recommendation of the chief justice with regard to the fixation of the pay scale.2. the facts leading to the filing of the writ petition is, that the petitioner is an association of the class iv employees of the high court of judicature at allahabad and had filed a writ petition no. 15211 of 1997, seeking a writ of mandamus commanding the state government to grant the pay scale of rs. 975-1, 600 to class iv employees w.e.f. 1.1.1986 with all consequential benefits and also the scale of rs. 1,000-1,750 w.e.f. 1.1.1986. the contention raised in the said writ petition for granting a higher pay scale was that similarly situated persons were receiving a higher pay scale in the delhi high court. the said writ petition was allowed by a judgment dated 6.2.1998 the operative portion of the judgment of the learned single judge is quoted herein:for the reasons stated above, present writ petition succeeds and is allowed. the respondents are hereby directed to pay salary in the pay scale of rs. 975-1,660 to all those class iv employees who are presently in the pay scale of rs. 750-940 and the salary of rs. 1,000-1,750 to all such class iv employees who are presently in the pay scale of rs. 775-1,025 without affecting, in any manner, the allowances which they are presently getting. the revised pay scales shall be made available to the class-iv employees of this court with effect from 1st july, ' 1994 (1.7.1994). the petitioners shall be paid the salary in the revised scale of pay, as said above, for the month of february payable on 1st march, 1998. so far as arrears part is concerned (w.e.f. 1.7.1994 to january, 1998 payable in february, 1998), the same shall be payable only after issuance of government order in the light of directions contained in this judgment.3. aggrieved, by the decision of the learned single judge, the state government preferred an intra court appeal, being special appeal no. 200 of 1998, which was allowed by a judgment dated 5.11.2003 and the order of the learned single judge was set aside. the division bench held that it was open to the chief justice to take a decision with regard to grant of a higher pay scale.4. apart from class iv employees of the high court, the section officers, bench secretaries and the private secretaries were also agitating for a higher pay scale. several writ petitions of section officers, private secretaries, bench secretaries and assistant registrars were allowed by the high court by various judgments dated 29.7.1998, 22.11.1999, 16.11.2000 and 20.5.2003. against these judgments, the state government filed a special leave petition which was allowed by the supreme court by a judgment dated 27.9.2004 in civil appeal no. 1980 of 2000, state of u.p. v. section officer brotherhood and anr. 2004 (4) awc 3396 (sc). the supreme court, while setting aside the judgments of the high court directed as under:we, therefore, are of the opinion that the impugned 'judgments cannot be sustained which are set aside accordingly. however, this order shall be subject to the rules framed by the chief justice in the case of the private secretaries of the high court. it will, however be open to the chief justice of the allahabad high court to frame appropriate rules as has been done in the case of the private secretaries or constitute an appropriate committee for the said purpose we have no doubt in our mind that if such committee is constituted and any recommendation is made for enhancement of the scale of pay for the concerned officers by the chief justice, the same would be considered by the state government in its proper perspective and in the light of the observations made hereinbefore expeditiously.for the reasons aforementioned, these appeals are allowed with the aforementioned observations. no costs.5. the supreme court issued the aforesaid directions based on the reasoning that no mandamus could be issued by the high court under article 226 of the constitution with regard to the increase in the pay-scale of an employee of the high court and that such determination of the pay-scale could only be done by the chief justice under article 229 of the constitution of india. the supreme court held:there cannot be any doubt or dispute whatsoever that determination of different scales of pay for different categories of employees would ordinarily fall within the realm of an expert body like the pay commission or pay committee. the chief justice of a high court exercises constitutional power in terms of article 229 of : the constitution of india.and at another place, the supreme court held that the provision of article 229 was evidently made to uphold the independence of the judiciary. the supreme court, at yet another place, further held:a bare perusal of the aforementioned provision would clearly go to show that laying down the conditions of service applicable in the case of staff and officers of a high court is within the exclusive domain of the chief justice but in case of any financial implication involving therein the approval of the state governor is imperative.6. the supreme court, while referring to its earlier decision in state of maharashtra v. association of court stenos, p. a., p. s. and anr. : 2002 (2) scc 141, and in the supreme court employees' welfare association v. union of india and anr. : 1989 (4) scc 187, held that any rules made by the chief justice relating to salaries, allowances, leave or pension of the employees of the high court would require approval of the governor and that such approval was a condition precedent to the validity of the rules made by the chief justice. the supreme court further held that when the chief justice of the high court makes a rule providing a particular pay scale for its employees, the same should ordinarily be approved by the governor unless there was a justifiable reason for not approving the same. at another place, the supreme court held:having regard to the high position and status enjoyed by the chief justice, it was observed, his recommendations. should ordinarily be approved by the state and refusal thereof must be for strong and adequate reasons.7. in the light of the aforesaid decisions of the supreme court in the matter of section officers, bench secretaries, etc., the special leave petition of the present petitioners was accordingly disposed of in terms of the said decision by a judgment dated 15.10.2004.8. in accordance with the directions issued by the supreme court, the chief justice, by its order dated 28.11.2004, constituted a committee of four hon'ble judges to consider and recommend the rules with regard to the pay-scale of the employees of the establishment of the high court. the aforesaid committee submitted its report on 23.12.2004 and gave its recommendation of the pay-scales of section officers, bench secretaries, etc. the committee also recommended the pay-scale of class iv employees. the relevant portion of the recommendation of the committee with regard to class iv employees for which this petition is concerned, is quoted herein:for class iv employees we recommend that all class iv employees irrespective of their categories, except those for whom the recruitment is provided by promotion namely, jamadar, daftari, bundle lifter and head mali in rule 4 (b) to (e) of the rules of 1976 and those who are required to possess technical qualification for recruitment, should be placed in the pay scale of rs. 3,050-4,590. the others namely the promotional posts and technical posts be given the pay scale of rs. 3,200-4,900 with all admissible allowances which they are getting at present in respect of different categories of post with regard to the nature of duties performed by them.9. the aforesaid recommendation was approved by the chief justice by an order dated 24.12.2004, holding:i find the recommendations to be reasonable and accept the report. government be moved forthwith with a request to implement the recommendations at the earliest.10. in accordance with the recommendations made by the committee vis-a-vis, the chief justice, a draft rule known as 'allahabad high court officers and staff (conditions of service and conduct) (amendment) rules, 2005 (hereinafter referred to as the 'rules of 2005') and 'allahabad high court bench secretaries conditions of service rules. 2004' were framed and the registrar general remitted the same to the state government for necessary approval. the state government, by an order dated 8.10.2005, communicated the approval of the governor with regard to the allahabad high court bench secretaries conditions of service rules, 2004. no decision was however, taken by the state government with regard to the rules of 2005.11. the correspondence between the high court and the state government (as culled out from various affidavits filed) suggests that the registrar general wrote a letter, dated 26.12.2004, to the principal secretary (judicial) to move the government for taking necessary action on the implementation of the recommendations. vide letter dated 16.2.2005, the draft rules were transmitted by the registrar general. it transpires that a high power committee involving officers of the high court and the state government was constituted, which met on 21st may, 2005 in which a decision was taken that the high court should review its recommendation since the finance department of the state government was of the opinion that the pay scale recommended by the high court for its class iv employees was different and higher than the pay scales of the class iv employees of the state government which would also create financial problems on the state exchequer. the said minutes were placed before the chief justice, who by an order dated 1.8.2005, directed the registrar general to place the minutes before the four judges committee, which had made the relevant recommendations and further placed a note of absolute disapproval of the minutes to the effect that the pay-scale which had been recommended, if allowed to continue, would not create any financial complications.12. in the meanwhile, the state government issued letters dated 30.9.2005 and 27.10.2005 asking for certain clarification and raised certain queries with regard to the conditions of service, educational qualification and creation of post in the draft rules. the queries raised in the letter dated 30.9.2005 was replied by the registrar general vide its letter dated 19.12.2005 which apparently was based on the recommendation made by the four judges committee reiterating its earlier recommendations. the registrar general in its letter dated 19.12.2005 categorically informed the state government that the recommendation made by the chief justice under article 229 of the constitution of india did not require any clarification or justification.13. since no decision was taken by the state government, the petitioners filed writ petition no. 27201 of 2006, which was disposed of by an order dated 17.5.2006 directing the state government to process the recommendation made by the chief justice by convening a meeting of the concerned officers of the state government and the high court and thereafter, proceed to take a decision in the matter, as expeditiously as possible, within four months from the date of the presentation of the copy of the order.14. it transpires, that based on the aforesaid direction of the court, a committee was again constituted comprising of officers of the high court and of the state government, which met on 29.7.2006, and the minutes of this meeting was recorded. in this meeting, the principal secretary (law) opined that the pay scale had to be fixed in accordance with the work performed by the person and that, if the rules framed by the high court are accepted, it will cause a financial burden on the state government. the minutes records the contention placed by the registrar general to the effect that on the basis of the pay scale given to similarly situated employees of the delhi high court, a writ petition was allowed and a mandamus was issued to pay a higher pay scale on the basis of which the class iv employees started receiving a higher pay scale and continued to receive the higher pay scale till the said judgment was set aside by a division bench. the registrar general further submitted that the reduction in the pay scale was causing a lot of resentment to the employees, and that in any case, the chief justice had now framed the rules under article 229 of the constitution which should be approved. the record indicates that the registrar general wrote letters dated 18.9.2006 and again on 5.9.2007 requesting the state government to take action and have the draft rules approved from the governor.15. it transpires that, after the aforesaid meeting of 29.7.2006, the state government did nothing to sort out the matter and the stalemate continued. the registrar general issued reminders to take a decision on the recommendation sent by the chief justice, which fell on deaf ears. it seems that the state government just sat over the matter. eventually, the petitioners filed a contempt petition no. 5387 of 2006 which was entertained and notices were issued to the respondents which triggered the state government into passing an order dated 28.2.2007 holding that it was not possible for the state government to enhance the pay scale of class iv employees of the high court of allahabad. the petitioners, being aggrieved by the aforesaid decision, has now filed the present writ petition.16. sri shashi nandan, the learned senior counsel for the petitioner, duly assisted by sri namit srivastava, advocate, submitted that the chief justice is the supreme authority and has framed the rules under article 229 of the constitution of india which is required to be approved by the governor. the learned senior counsel submitted that the state government cannot abridge or curtail the powers conferred on the chief justice by placing impediments by raising frivolous queries and thereby allowing the matter to be kept in a state of limbo. the learned counsel submitted that once the rules framed by the chief justice are sent to the state government for approval, the state government is required to perform a ministerial task and is required to approve the rules unless there are strong and cogent reasons for disapproving the draft rules. in the present case, a petty officer has taken a decision which is not a decision of the state government in refusing to accord approval of the recommendation made by the chief justice under article 229 of the constitution of india. the learned counsel submitted that there is no decision of the state government in refusing to approve the rules nor has the matter been placed before the governor as required under the proviso to sub-section (2) of article 229 of the constitution of india. the learned counsel further submitted that by the impugned order, the principal secretary has refused to approve the rules on the ground of financial constraints and submitted that financial constraint by itself is not a valid or cogent reason and is only a petty excuse to delay the matter. the learned counsel submitted that pursuant to the judgment delivered by the single judge of the high court, class iv employees started receiving a higher pay scale for several years till it was set aside by the division bench and, during this period, the state government did not object to the higher pay scale being paid to the employees of the high court. consequently, the ground for refusal apparently does not exist. the learned counsel submitted that the impugned order is manifestly erroneous in law since no cogent or valid reasons has been given and is therefore, liable to be quashed. the learned counsel submitted that since the state government was only placing petty objections and was unnecessarily delaying the matter, consequently, a writ of mandamus should also be issued commanding the state government to accord approval to the draft rules submitted by the chief justice in accordance with the provisions of article 229 of the constitution of india.17. sri zafar naiyer, the additional advocate general, appeared on behalf of the state government and contended that the writ petition was not maintainable and was liable to be dismissed. the learned counsel submitted that the petitioners had earlier filed a, writ petition in which a mandamus was issued commanding the state government to give a higher pay scale which was subsequently set aside by a division bench of the high court and, later on, affirmed by the supreme court. consequently, a second writ petition, on the same issue and, on the same cause of action, does not arise and, therefore, the writ petition was liable to be dismissed.18. sri zafar naiyer, further contended that in the conference of the chief justices and chief ministers, held in bombay in 1962, a resolution was adopted, namely, that the employees of the high court would be given parity with the pay given to the employees of the state government. pursuant to this resolution, the employees of the high court are getting the same pay as given to the employees of the state government. consequently, there was no occasion to disturb this parity and approve the rules framed by the chief justice by which class iv employees would get a higher pay scale than that of similarly situated employees of the state government. the additional advocate general submitted that the parity should not be disturbed. the additional advocate general, further submitted that, in any case, the difference in the pay scale being recommended by the chief justice would create an anomaly and further impose a financial burden upon the state exchequer and therefore, it was not possible to approve the rules. the additional advocate general, further contended that the writ petition was also premature, inasmuch as, the state government was still pondering over the matter and had not taken a final decision and that a final decision would be taken after the state government receives a reply to the queries being raised vide its letter dated 27.10.2005 which queries have not been replied by the high court till date. the learned counsel further submitted that the employees of the high court are in fact claiming parity with the pay scale of the employees of the delhi high court which is not permissible nor is binding upon the state government. in support of his submission the learned additional advocate general relied upon a decision of the supreme court in state of h. p. v. p. d. attri and ors. : 1999 (3) scc 217. the additional advocate general submitted that the rules recommended by the chief justice would create financial burden upon the state government and would violate the resolution of 1962 and, consequently, the rules cannot be approved.19. sri yashwant verma, advocate, appearing on behalf of the high court, submitted that the state government was unnecessarily raising frivolous objections and sending queries which was neither warranted under the law nor was required. the learned counsel submitted that the queries raised by the state government through various letters were with regard to the qualifications and conditions of service of the employees of the high court which was beyond their jurisdiction as is clear from a plain reading of article 229 of the constitution of india. the learned counsel submitted that any rules framed by the chief justice under article 229 of the constitution of india had to be given effect to and that the state government was required to approve the rules only with regard to the matters relating to salaries, allowances, leave or pension. the learned counsel submitted that the queries, as per the letters dated 30.9.2005 and 27.10.2005, related to the deletion of the post of water boy or with regard to the educational qualifications of class iv employees or with regard to the qualification of an electrician, etc., which queries were unwarranted and outside the jurisdiction of the state government. the learned counsel submitted that, in any case, the queries raised by the state government was duly replied vide letter of the registrar general dated 19.12.2005 and again vide letter dated 25.10.2008 which was sent when the court directed the registrar general to give a specific reply to the letter of the state government dated 27.10.2005. the learned counsel submitted that upon sending the letter dated 25.10.2008, the state government has sent another letter dated 23.12.2008 again raising frivolous objections and requesting the high court to mention the educational qualification for each post and further directing the high court to incorporate the pay scale of each post on the basis of the pay scale being given on such post by the state government, meaning thereby that the pay scale should be in accordance with the pay scale of the state government. the learned counsel further submitted that pursuant to the judgment of the single judge, the class iv employees of the high court started receiving a higher pay scale which was not objected by the state government, and that, the enhanced pay scale was stopped after the judgment of the single judge was set aside by the division bench as a result of which, the employees of the high court are now receiving a lower pay scale which was bringing a lot of discontentment.20. the learned counsel for the high court further submitted that pursuant to the decision of the supreme court, the chief justice constituted a committee of four hon'ble judges, and that, the committee, after considering all aspect of the matter and after considering the work performed by the class iv employees, their duties and responsibility, recommended the pay scale. the learned counsel submitted that the recommendation of the committee was duly accepted by the chief justice, and on that basis, the draft rules were sent to the state government for necessary approval, which has not been forwarded by the state government for necessary approval to the governor. the learned counsel submitted that under article 229 of the constitution of by the governor and that the action of the state government in not approving the rules was unwarranted. the learned counsel for the high court has also placed the recommendation of the four judges committee, which the court has perused and which will be dealt with at the appropriate place.21. in the light of the submissions raised by the parties and the case laws referred which will be dealt hereinafter, it would be proper that the provisions of article 229 of the constitution of india is perused. for the facility, the provisions of article 229 is quoted hereinbelow:229. officers and servants and the expenses of high courts.-(1) appointments of officers and servants of a high court shall be made by the chief justice of the court or such other judge or officer of the court as he may direct:provided that the governor of the state may by rule require that in such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with the court save after consultation with the state public service commission.(2) subject to 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 the rules made by the chief justice of the court or by some other judges or officer of the court authorized 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) 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.22. the provisions of article 229(2) of the constitution has been a subject of interpretation by the supreme court through various judgments.23. in m. gurumoorthy v. accountant general, assam and nagaland and ors. : 1971 (2) scc 137, the supreme court held that the governors' approval must be sought because the finance has to be provided by the government and to that extent the government has to approve it. the supreme court further held that the chief justice of high court has exclusive powers under clause (1) read with clause (2) of article 229 of the constitution not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a high court. the supreme court held-the unequivocal purpose and obvious intention of the framers of the constitution in enacting article 229 is that in the matter of appointment of officers and servants of a high court it is the chief justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the article. this is essentially to secure and maintain the independence of the high courts. the anxiety of the constitution-makers to achieve that object is fully shown by putting the administrative expenses of a high court including all salaries, allowances and pension payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the high court nor can the amount of any expenditure so charged be varied even by the legislature. clause (1), read with clause (2) of article 229 conferred exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a high court by rules on the chief justice of the court. this is subject to any legislation by the state legislature but only in respect of conditions of service. in the matter of appointments even the legislature cannot abridge or modify the powers conferred on the chief justice under clause (1). the approval of the governor as noticed in the matter of rules, is confined only to such rules as relate to salaries, allowances, leave or pension. all other rules in respect of conditions of service do not require his approval.24. in state of andhra pradesh and anr. v. t. gopalakrishnan murthi and ors. : 1976 (2) scc 883, the supreme court held that grant of approval by the government under article 229 of the constitution is not a formality. the supreme court held-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.25. in supreme court employees' welfare association v. union of india and anr. : 1989 (4) scc 187, the supreme court held that when a rule is framed by the chief justice, it should ordinarily be approved since the rules has been framed by a very high dignitary and should be looked upon with respect unless there was a good reason for not approving the reasons. the supreme court held:so far as the supreme court and the high courts are concerned, the chief justice of india and the chief justice of the concerned high court, are empowered to frame rules subject to this that when the rules are framed by the chief justice of india or by the chief justice of the high court relating to salaries, allowances, leave or pensions, the approval of the president of india or the governor, as the case may be, is required. it is apparent that the chief justice of india and the chief justice of the high court ' have been placed at a higher level in regard to the framing of rules containing the conditions of service. it is true that the president of india cannot be compelled to grant approval to the rules framed by the chief justice of india relating to salaries, allowances, leave or pensions, but it is equally true 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. if the president of india is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the president of india and the chief justice of india.26. similar view was expressed by the supreme court in the high court employees welfare association, calcutta and ors. v. state of w. b. and ors. : 2004 (1) scc 334. in union of india and anr. v. s. b. vohra and ors. : 2004 (2) scc 150 : 2004 (5) awc 4035 (sc), the supreme court held as under:independence of the high court is an essential feature for working of the democratic form of government in the country. an absolute control, therefore, has been vested in the high court over its staff which would be free from interference from the government subject of course to the limitations imposed by the said provisions. 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 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 regards salary, allowances, leave or promotion. it is trite that such approval should ordinarily be granted as a matter of course.27. in the high court of judicature for rajasthan v. ramesh chandra paliwal and anr. : 1998 (3) scc 72 : 1998 (2) awc 1085 (sc), the supreme court held:since, under the constitution, the chief justice has also the power to make rules regulating the conditions of service of the officers and servants of the high court, it is obvious that he can also prescribe the scale of salary payable for a particular post. this would also include the power to revise the scale of pay. since such a rule would involve finances, it has been provided in the constitution that it will require the approval of the governor which, in other words, means the state government. this court in state of a. p. v. t. gopalakrishnan murthi had expressed the hope that 'one should accept in the fitness of things and in view of the spirit of article 229 that the approval, ordinarily and generally, would be accorded'. this was reiterated by this court in supreme court employee's welfare association v. union of india. we again reiterate the hope and feel that once the chief justice, in the interest of high court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the state government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of the equivalent post in the government has been revised.28. in state of maharashtra v. association of court stenos, p.a., p. s. and anr. : 2002 (2) scc 141, the supreme court held:under the constitution of india, appointment of officers and servants of a high court is required to be made by the chief justice of the high court or such other judge or officer of the court as the chief justice directs. the conditions of service of such officers and servants of the high court could be governed by a set of rules made by the chief justice of the high court and even the salaries and allowances, leave or pension of such officers could be determined by a set of rules to be framed by the chief justice, but so far as it relates to salary and allowances, etc. it requires approval of the governor of the state. this is apparent from article 229 of the constitution. on a plain reading of article 229(2), it is apparent that the chief justice is the sole authority for fixing the salaries etc. of the employees of the high court, subject to the rules made under the said article. needless to mention, rules made by the chief justice will be subject to the provisions of any law made by the legislature of the state. in view of proviso to sub-article (2) of article 229, any rule relating to the salaries, allowances, leave or pension of the employees of the high court would require the approval of the governor, before the same can be enforced the approval of the governor, therefore, is a condition precedent to the validity of the rules made by the chief justice and the so-called approval of the governor is not on his discretion, but being advised by the government. it would, therefore, be logical to hold that apart from any power conferred by the rules framed under article 229, the government cannot fix the salary or authorise any particular pay scale of an employee of the high court.29. under the constitution, the appointment of officers and servants of the high court is required to be made by the chief justice. the conditions of service of such officers and servants of the high court is governed by a set of rules framed by the chief justice of the high court. even the salaries and allowances, leave or pension of such officers and servants are also determined by the chief justice. however, the rules relating to salaries and allowances etc. is required to be approved by the governor of the state. this is apparent from a plain reading of article 229(2) of the constitution. it is also apparent that the chief justice is the sole authority for fixing the salaries, etc. of the employees of the high court. it is also apparent from a reading of article 229 of the constitution that it is primarily the responsibility of the state legislature to lay down the conditions of the service of the officers and servants of the high court, but so long as the state legislature does not lay down such conditions of service, the chief justice is empowered to make rules for the purpose. this legislative function is, in fact, has been delegated to the chief justice of the high court by article 229(2) of the constitution. constitutionally, the function of the chief justice in framing rules laying down the conditions of service is legislative in nature, which necessarily includes the salaries, allowances, leave and conditions of the officers and servants of the high court. the proviso to sub-clause (2) of article 229 puts a restriction on the power of the chief justice by providing that the rules relating to salaries and allowances etc. would require the approval of the governor.30. in the light of the aforesaid judgments of the supreme court, it is clear, that the rules framed by the chief justice with regard to the conditions of service of the employees and officers of the high court is final and conclusive except with regard to salaries, allowances, leave or pension which require approval of the governor and the reasons for requiring such approval is the involvement of the financial liability of the government.31. there is another aspect which needs consideration, namely, sub-clause (3) of article 229 of the constitution, which contemplates that the administrative expenses of a high court including salaries, allowances and pensions payable to or in respect of the officers and servants of the court shall be charged upon a consolidated fund of the state and as per article 203 of the constitution, such administrative expenses shall not be submitted to the vote of the legislative assembly. this provision was incorporated mainly to maintain the independence of the judiciary, which is achieved by putting the administrative expenses of a high court including all salaries, allowances and pension payable to or in respect of officers and servants of the court at the same level as the salaries and allowances of the judges of the high court nor can the amount of any expenditure so charged be varied even by the legislature. the supreme court while interpreting the proviso to article 229(2) of the constitution has held that the approval was required from the governor in matters relating to salaries, allowances, leave of pensions etc. the supreme court has further held that the governor cannot be compelled to grant approval, but, further held that whenever the chief justice, who is a very high dignitary of the state, frames such rules, it should be looked upon with respect and ordinarily, the rules should be approved unless there are strong and cogent reasons for not approving. the supreme court further went on to say that, if approval cannot be granted, the governor could not straightway refuse to grant such approval, but before doing so, there must be an exchange of thoughts between the state government and the chief justice of the high court.32. the supreme court in union of india and anr. v. s. b. vohra and ors. (supra) has held that independence of the high court is an essential feature for the working of the democratic form of the government in the country and that absolute control was vested in the high court over its staff, which is free from interference from the government subject to the limitation imposed under the proviso. the supreme court in the aforesaid case went on to hold that when such rules are placed for approval, such approval should ordinarily be granted as a matter of course.33. in the light of the aforesaid provisions, the court finds that the stand taken by the state government is contradictory. at one place the state government states that the matter is pending consideration and that certain queries have been asked from the high court, which is pending consideration. on the other hand, the state government has taken a decision not to grant approval of the pay scale recommended by the chief justice for the class iv employees. with regard to the queries raised by the state government, it has come on record, that the high court has issued a reply, and promptly, the state government has again asked for certain queries. from a perusal of the queries raised by the state government, it is clear that the objections raised by the state government are without jurisdiction. the queries relate to the conditions of service of the employees and officers of the high court and therefore encroaches upon the legislative function of the chief justice. the state government has no business to request the chief justice to delete the post of water boy or change the qualification of the electrical technician and make it in accordance with the qualification given by the state government. such matters are totally outside the domain of the state government.34. the supreme court has categorically held that the state government is only required to grant approval with regard to the salaries, allowances, leave or pension. the state government, however, cannot refuse to accord approval solely on the ground that, if the pay scale is approved, it will cause financial implications. if this ground is allowed to be taken, it will give a handle to the state government to deny approval on each and every occasion whenever the matter comes up before it with regard to the approval relating to the pay scales, salaries, allowances, leave, pension etc. and the high court would be saddled with a begging bowl in its hands, which was never the intention of the framers of the constitution. it is apparent that in order to maintain the independence of the judiciary, the framers of the constitution thought it wise and expedient to make a provision as contained in clause (3) of article 229 of the constitution. it is not sufficient for the state government to refuse to grant an approval on the strength of financial constraint. in union of india and anr. v. s. b. vohra and ors. (supra), the supreme court has held that financial implications cannot be made a ground to disapprove the rules. the supreme court held:it has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-a-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. this aspect of the matter has been highlighted by this court in the case of the judicial officers in all india judges' association v. union of india as well as the report of the shetty commission.35. in high court employees welfare association, calcutta and ors. v. state of w.b. and ors. : 2004 (1) scc 334, the supreme court held:the government will have to bear in mind the special nature of the work done in the high court 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.36. the supreme court, in the light of the aforesaid decisions also held, that before refusing to grant approval there should be an exchange of thoughts between the chief justice and the state government. in the present case, the court finds that a committee was constituted comprising of officers of the high court and that of the state government. a perusal of the minutes of this high power committee indicates the narrow mindset of the state government. the only hurdle before the state government appears that the parity granted pursuant to the resolution of the chief justices and the chief ministers in the year 1962 would be disturbed, in the event a higher pay scale is granted and that, it would also create financial problems. it is also apparent that the state government is insisting that the pay scale of the class iv employees should be similar to the pay scale of the class iv employees of the state government.37. in my opinion, the contention of the state government that the pay scale of the class iv employees should be at par with the class iv employees of the state government, cannot be accepted. there is nothing in the record of the state government, which has been produced before the court, to indicate that the state government considered the relevant factors which are required for fixation of the pay-scale. there is nothing to indicate that the pay scale fixed by the chief justice was arbitrary and that the relevant factors was not considered. the court has perused the recommendations of the four judges committee and finds that the committee of four judges took into consideration the nature of work discharged by the class iv employees of the high court with that of the class iv employees in other departments of the state government. the committee found that the class iv employees are performing important duties and jobs which are entrusted to them for maintaining the dignity and standard of the high court. the committee further found that class iv employees are contributing to the smooth functioning of the court and performing important public duties of dispensation of justice and are performing onerous duties without any complaint and keeping longer hours without any special allowances as paid to the employees of the state secretariat. the committee further found that class iv employees are performing different nature of duties and are required to work for longer hours not only in the high court but at the residence of the hon'ble judges. the committee came to the conclusion that it was difficult to equate the class iv posts of the high court with that of the state government and found that the employees of the high court are performing no less onerous and arduous duties as their counter parts in the delhi high court.38. consequently, the court finds that relevant considerations were considered in detail by the four judges committee while recommending a higher pay scale to the class iv employees. the nature of work and duties performed by the class iv employees were found to be distinct and different from the class iv employees of the state government. consequently, the state government fell in error in insisting that the pay scales of the class iv employees should be similar to the pay scale of class iv employees of the state government. the state government further fell in error in insisting that parity should be maintained. it is settled law that the principle of equal pay for equal work postulates scientific determination of principle of fair comparison. comparison is made from the work performed by an employee and not by designation. in the opinion of the court, comparison by designation is misleading in the present case. the court finds from a perusal of the record of the state government that no attempt was made to ascertain the nature of work performed by a class iv employees of the high court whereas the four judges committee has dwelt the matter in detail and ascertained the nature of work of an employee in each category of staff of the high court and only thereafter determined the pay structure and recommended the same to the chief justice.39. accordingly, the court finds that the stand adopted by the state government cannot be accepted. there is another aspect of the matter. the court finds that the. state government has taken a decision mechanically without any application of mind and the order was passed only to get over the contempt proceedings that was drawn against them. the record does not indicate that the chief minister or the council of ministers has disapproved the recommendations and, it transpires, that the impugned order has been passed by the principal secretary on its own accord. article 229(2) of the constitution requires an approval of the governor. no doubt the governor acts in accordance with the advice of the council of ministers. in the present case, the court finds that the matter was never placed by the state government before the governor and that the state government rejected the recommendation on its own accord. the court finds, that there has been an unnecessary interference by the executive. needless to point out, the supreme court in paliwals' case (supra) pointed out that where the chief justice had taken a progressive step to ameliorate the service conditions of the officers and staff of the high court the state government could hardly raise any objections either to the sanction of creation of post or fixation of salary.40. in the light of the aforesaid, the court is of the opinion, that the order of the principal secretary, dated 28.2.2007, cannot be sustained. the petitioners have also prayed that a mandamus should be issued directing the government to implement the recommendations sent by the chief justice. a question, which niggles the mind of the court is, whether in such circumstances the court should issue a mandamus under article 226 of the constitution or not? the supreme court after considering a large number of cases held in comptroller auditor general of india v. k. s. jagganath : 1986 (2) scc 679:there is thus no doubt that the high courts in india exercising their jurisdiction under article 226 have the power to issue a writ of mandamus or as writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a police decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such direction has been conferred. in all such cases and in any other fit and proper case a high court can, in the exercise of its jurisdiction under article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.41. in the light of the aforesaid decision, the court finds that the state government was unnecessarily raising frivolous queries which were beyond their jurisdiction. in so far as the rules relating to salaries, etc. was concerned, the court finds that no steps whatsoever was taken by the state government to arrive at a consensus. the state government was adamant that parity should not be disturbed and that a higher pay scale should not be given to the class iv employees of the high court. in the light of the aforesaid, the court finds that a direction to the state government to again constitute a committee and resolve the issue amicably would not lead to any fruitful result. the matter is hanging fire for the last five years and no result can be seen in the near distance. consequently, remitting the matter again to the state government for reconsideration does not appear to be a feasible option. a mandamus is a discretionary remedy under article 226 of the constitution and can be issued to compel the performance of public duty. the state government was required to perform a public duty and place the rules before the governor for its approval. by placing fetters in raising frivolous objections, the state government failed to perform its duty. when the authority, which in the present case, is the state government, does not perform its constitutional duty, the court could be compelled to intervene in the matter not only to quash an order but also issue a mandamus to that authority.42. in the light of the aforesaid, the impugned order dated 28.2.2007 cannot be sustained and is quashed. the writ petition is allowed and a mandamus is issued to the state government to place the draft rules framed by the chief justice under article 229 of the constitution of india for approval before the governor. this exercise is required to be carried out by the state government as early as possible. in the circumstances of the case, the parties shall bear their own cost.