State Of West Bengal And Ors vs Debasish Mukherjee And Ors

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3480 OF 2005

State of West Bengal & Ors. ... Appellants

Vs.

Debasish Mukherjee & Ors. ... Respondents

With

Civil Appeal No.3481 of 2005

Civil Appeal No.3482 of 2005

Civil Appeal No.3483 of 2005

Civil Appeal No.3484 of 2005

Civil Appeal No.3485 of 2005

Civil Appeal No.3486 of 2005

Civil Appeal No.3650 of 2005

Civil Appeal No.3609 of 2005

J U D G M E N T

R.V.RAVEENDRAN, J.

All these appeals question the common order dated 20.1.2005 of the

Calcutta High Court allowing a batch of appeals by the employees of the

High Court. The facts are similar and for convenience, we will refer to the

facts from C.A. No.3480/2005.

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2. One Gopniath Dey (for short `Dey') was appointed as a Section

Writer/Typist in the Original Side of the Calcutta High Court on 19.3.1964.

He was brought under the regular establishment on 1.9.1979 and was

allowed the pay-scale of ` 230-425 under the West Bengal Services Revision

of Pay and Allowances Rules, 1970 (for short `WB (ROPA) Rules, 1970).

The said pay-scale was subsequently revised as ` 300-685/- with effect from

1.4.1981 and under the WB (ROPA) Rules, 1981. He was granted a

promotion as Typist, Grade I in the scale of ` 380-910/- with effect from

2.4.1981. He appeared in the selection examination for the post of Lower

Division Assistant and was selected and appointed on 9.9.1985. On such

appointment his pay was fixed as ` 550 in the scale of ` 300-685/-, taking

into account his last pay drawn in the former Grade-I Post. On exercising

option under the W.B. ROPA Rules, 1990, his pay scale was revised and re-

fixed with effect from 1.8.1986. On 1.4.1989, he was awarded the second

higher scale under the 20 years Career Advancement Benefit Scheme.

3. Sixty three employees who were senior to Gopinath Dey in the cadre

of Lower Division Assistants, working in the Original Side of the High

Court, submitted a representation to the Chief Justice on 27.6.1997

requesting that by relaxing Rule 55(4) of West Bengal Service Rules - Part I

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(for short `WBSR') their pay be stepped up and re-fixed on par with the pay

of their junior Gopinath Dey. The Chief Justice referred the representation to

a Special Committee of three Judges and the said Committee submitted a

report dated 2.12.1998 recommending rejection of the representation with

the following observations :

"In our opinion Gopinath Dey has been given certain benefits to which he

was not entitled to in law. We are of the view, the Rule 55(4) of WBSR

Part-I cannot be said to have any application whatsoever in this case.

It appears to us that Sri Gopinath Dey was granted undue benefits. The

whole fact was not placed before us as to how he could be granted such

benefits to which he was not entitled. If an illegality has been committed

in the case of one employee, it is well settled in law, that on the basis of

such illegality another person cannot claim the same benefit. Illegality is

incurable as has been held in AIR 1974 SC 2177 and AIR 1995 SC 705.

Furthermore, Article 14 of the Constitution of India contains a positive

concept. Reference may be made in this connection the decision reported

in 1996 (2) SCC 459. See also 1998 Lab & I.C 180 and 1998 Lab & I.C

1976. In view of the decisions, illegality cannot be directed to be

perpetuated. This illegal benefits granted to Sri Gopinath Dey, if any,

cannot be extended to memorialists."

(Emphasis supplied)

4. Some time thereafter, the Dy. Secretary, Government of West Bengal,

Judicial Department, by memo dated 5.12.2000 returned the Service Books

of 18 employees (including that of Gopinath Dey) stating that the Career

Advancement benefits granted to all of them were in order. Taking a cue

therefrom, immediately thereafter, fifty employees (senior to Dey) including

respondents 1 to 5, made another representation dated 10.1.2001 to the Chief

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Justice, stating that though seniors to Gopinath Dey, they were getting a

lesser pay than Gopinath Dey, that by memo dated 5.12.2000, the state

government had found the pay fixation of Gopinath Dey to be in order and

therefore, their pay may be re-fixed to be at par with the pay of their junior -

Gopinath Dey, by relaxing Rule 55(4) of WBSR.

5. In the meanwhile, Gopinath Dey retired from service in the year 2001.

When his service book was forwarded to the Accountant General, West

Bengal, for processing his pensionary claim, the office of the Accountant

General returned the pension file to the High Court twice under cover of

memo dated 21.12.2001 and again on 9.5.2002 to review the pay fixation of

Gopinath Dey on the ground that awarding of second higher grade directly

on 1.4.1989 was not in order and that career advancement benefit could be

awarded to him only by reckoning the service from 9.9.1985.

6. The representation dated 10.1.2001 given by respondents 1 to 5 and

45 other senior employees, was also referred to a Three-Judge Special

Committee and the said Committee submitted a report dated 27.11.2002

recommending that the said senior employees may be given the pay

protection by stepping up their pay, so that their pay is not less than that of

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Gopinath Dey. The Special Committee held that the report dated 2.12.1998

of the earlier Special Committee was no longer effective, on the following

reasoning :

"We find that the Special Committee of the three Judges in their report

dated 2.12.1998 proceeded on the opinion that Sri Gopinath Dey was

given the benefit to which he was not entitled in law and Rule 55(4) of the

WBSR Part-I cannot be said to have any application whatsoever in this

case.

But now it has been held that allowing the Career Advancement Benefit to

Sri Gopinath Dey is in order and this has neither challenged in any

proceeding nor set aside by any appropriate forum. In such circumstances,

we are of the opinion that observations of the earlier Special Committee of

three Judges has lost its force as it preceded on an opinion about the

irregularity in granting such benefit to Sri Gopinath Dey but presently, the

same having been found to be in order, we fell that the present fifty

memorialists are also entitled to pay protection so that they are not to get a

pay lesser than Sri Gopinath Dey who is admittedly much junior to all the

present memorialists."

7. The Special Committee was thus clearly of the view that if the

fixation of pay of Gopinath Dey was erroneous or illegal, the memorialists

would not be entitled to stepping up of pay to be on par with Gopinath Dey,

but if the grant of Career Advancement benefit to Gopinath Dey was legal

and valid, his seniors in the cadre would be entitled to stepping up of their

pay so that their pay will not be less than that of Gopinath Dey. However,

when the memos dated 21.12.2001 and 9.5.2002 from Accountant General's

Office (stating that the grant of career advancement benefit to Dey was not

in order) was brought to their notice, the Three-Judge Special Committee

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gave a further report dated 20.1.2003, modifying its earlier report dated

27.11.2002 by recommending that the memorialists be given the same

benefit as was accorded to Dey, in keeping with the principle of pay

protection so that their pay is equivalent to that of Dey in relation to his

appointment as Lower Division Assistant on 9.9.1985. We extract below the

reason assigned for such recommendation :

"Admittedly, all the memorialists are senior to Dey but were receiving

lesser pay that Dey and even if Dey's service as Lower Division Assistant

from 9.9.1985, it is to be taken into consideration for the purpose of grant

of benefit of Career Advancement Scheme the memorialists would also be

entitled to the same benefit taking the date of consideration in their case

also from 9.9.1985. Whatever be the method of calculation as far as the

fixation of Dey's pay is concerned, the memorialist, who are all senior to

him in the same cadre, cannot get a lesser pay than Dey in keeping with

the principle of Rule 55(4) of the West Bengal Service Rules-Part-I."

8. The Registrar (Original Side), High Court, placed the said report dated

20.1.2003 before the learned Chief Justice, with the following submission

note : "I further submit before your Lordship for the reasons aforesaid, if

your Lordship approved the recommendations of the Hon'ble Judges

Committee for the said 50 memorialists be allowed and pay protection be

given effect as per recommendations with intimation to the Government."

On the said note, the Chief Justice made an order "Please do the needful" on

13.2.2003, thereby directing that the 50 memorialists be given pay

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protection as per the recommendation of the Special Committee in its report

dated 20.1.2003.

9. The Registrar (Original Side) of the High Court issued the following

note of acceptance dated 4.3.2003 extending the benefit of pay protection to

the 50 senior employees (including respondents 1 to 5) :

"In approving the recommendation of the Hon'ble Judges' Committee on

the memorial of fifty employees, the Hon'ble The Chief Justice in exercise

of powers conferred under Clause 2 of Article 229 of the Constitution of

India has been pleased to allow under order dated 13.2.2003 the following

fifty employees who are seniors to Sri Gopi Nath Dey, the same benefit as

given to Sri Gopi Nath Dey in keeping with the principle of pay protection

under Rule 55(4) of the WBSR, Part-I so that their pay is equivalent to

that of Sri Gopinath Dey in relation to his appointment as Lower Division

Assistant on and from 9.9.1985."

The State Government by its letter dated 7.3.2003 addressed to the High

Court, traced the career and emoluments of Gopinath Dey from 1964 and

pointed out that Dey was not entitled to Grade I promotion of Section Writer

(Typist) in the scale of ` 380-910 under the ROPA Rules, 1981 with effect

from 2.4.1981 as he had not been confirmed in that post at that time. The

state government further pointed out as Dey was appointed as Lower

Division Assistant as a direct recruit in the scale of ` 300-685/-, with effect

from 9.9.1985, he was not entitled to the second higher scale under the

career advancement scheme with effect from 1.4.1989. In view of it, the

High Court corrected the service book of Gopinath Dey by giving him the

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benefit of Grade I promotion of Section Writer (Typist) with effect from

1.8.1982 instead of 2.4.1981. The High Court also sent a letter dated

9.4.2003 to the office of the Accountant General admitting the said mistake

and confirming the correction in regard to grant of Grade I promotion to

Gopinath Dey. In the said letter, the Registrar (Original Side) High Court

also admitted that extension of twenty years Career Advancement Scheme

Benefit to Dey with effect from 1.4.1989 was a mistake and the order

granting such benefit was cancelled and the service book of Dey had been

correct.

10. When the pay bills of the 50 senior employees who were given the

pay protection by increasing their pay at par with that of Gopinath Dey, were

sent to the Calcutta Pay & Accounts Office-II, they were returned with a

Return Memo dated 21.4.2003 stating that before allowing any benefit

relating to salary, allowances, leave and pension to the employees of the

High Court, the prior approval of the Governor of the State was required.

The High Court immediately sent a reply dated 24.4.2003 stating that the

Chief Justice is empowered to dispense with or relax the requirement of all

or any of the rules to such extent and subject to such conditions as he may

consider necessary, for dealing with the employees of the High Court in a

just and equitable manner. The Calcutta Pay & Accounts Office-II again

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returned the pay bills with a Return Memo dated 29.4.2003 stating that it

had no authority to pay the bill amounts without the directions from the

State Government. By another Return Memo dated 6.5.2003, the Calcutta

Pay & Accounts Office requested the High Court to resubmit the bills which

provided for a higher pay to the 50 employees after obtaining the

clarification of the state government, regarding applicability of Rule 55(4)

and the consent of the Governor. On 7.5.2003, the Government requested the

High Court to review the entire matter in view of the fact that fixation of pay

of Gopinath Dey at various stages was erroneous and required rectification.

11. At this juncture, respondents 1 to 5 approached the High Court and

sought a declaration that they were entitled to pay protection as per orders of

Chief Justice dated 13.2.2003 in the post of Lower Division Assistant, on

and from 9.9.1985 in order to bring their pay at par with that of Gopinath

Dey, who was their junior. They also sought cancellation of the return memo

dated 21.4.2003, 29.4.2003 and 6.5.2003 of the Calcutta Pay & Accounts

Office. Similar writ petitions were filed by other employees senior to

Gopinath Dey. The West Bengal Government also filed writ petitions

challenging the report of the Judges Committee dated 20.1.2003, order of the

Chief Justice dated 13.2.2003 and the consequential orders dated 4.3.2003

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issued by the High Court, extending the stepping up benefit to the senior

employees.

12. The six writ petitions filed by the employees and three petitions filed

by the state government were heard and disposed of by a learned Single

Judge by a common order dated 17.11.2003. The learned Single Judge inter

alia held Rule 55(4) was inapplicable as the two conditions for applicability

of the said Rule were admittedly absent. As it was also admitted that Dey

was wrongly given the benefits and Dey has not challenged the correction of

his pay and direction for recovery of the amount paid in excess, it followed

that Dey was not entitled to the benefits wrongly given and consequently,

respondents 1 to 5 and other senior employees were not entitled to stepping

up of their pay with reference to the pay of Dey. He dismissed the writ

petitions by the employees and allowed the writ petitions by the state

government and directed that any excess amount paid to the senior

employees by stepping up their pay, should be recovered from them.

13. Feeling aggrieved, the employees filed appeals and those appeals were

allowed by a Division Bench of the High Court by a common order dated

20.2.2005. The Division Bench held :

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"(a) The Chief Justice had made the Calcutta High Court Rules,

1960 with the approval of the Governor of the State in so far as the rules

relate to salaries, allowances, leave or pension. Once rules had been

framed by the Chief Justice and were approved by the Governor in relation

to financial matters, so long as there is no legislation by the State

Legislature, action taken under the powers conferred by the rules cannot

be questioned, when such powers exercised by the Chief Justice stood on

equal footing to that of Governor.

(b) The state government could not raise any objection to the

recommendation for fixation of salary, sanction of creation of posts or

grant of increase in case of disparity in exceptional circumstances,

particularly when it is aimed at the ameliorating the service conditions of

the employees of the High Court. Such action of the Chief Justice, when

exercised bona fide and when within the scope of the powers conferred on

him, cannot be questioned by the executive or even by the court.

(c) The post of LDA is neither a higher nor a promotional post.

Rule 55(4) would therefore not be applicable. Gopinath Dey was holding

an ex cadre post which was not one of the sources of recruitment to the

post of Lower Division Assistant. The post held by Gopinath Dey was not

a feeder post for the post LDA. The post of LDA was not a promotional

post. The post of LDA was the bottom post in the cadre in which the

recruitment was made. Therefore, none of the factors, in which higher pay

could be justified with reference to the pay of a junior, were satisfied.

(d) The moment Gopinath Dey entered the post of LDA

through direct recruitment, he acquired the lien of that post. He could not

hold the lien of another cadre when he came through direct recruitment to

the cadre of LDA. On his substantive appointment to the permanent post

of LDA, his lien in the substantive ex cadre post held permanently stood

terminated. Thus Gopinath Dey could not claim any benefit on account of

his length of service by reason of any lien. Unless lien was available to

him, he could not claim fixation of pay at a higher stage than those of his

seniors.

(e) Once the state government claim that the pay of Gopinath

Dey was correctly fixed, it cannot contend that the senior employees

cannot claim parity on the basis of a wrong fixation of pay of Gopinath.

When the pay was wrongly fixed and Gopinath Dey was given a higher

pay, the respondents being senior to him cannot be paid less and are

entitled at least to the same pay Gopinath Dey was given.

(f) The Special Committee submitted its report recommending

pay protection which itself is an indication of an exceptional circumstance

when it was found that the Gopinath was not entitled to fixation of pay and

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the senior employees were not entitled to the benefit of Rule 55(4) of

WBSR Part-I.

(g) Once in his wisdom the Chief Justice takes action to grant

increase in the pay of senior employees to bring their pay at par with that

of Gopinath Dey, such action cannot be questioned if the action of the

Chief Justice is based on a source of power. Rule 49 is the source of

power. The exercise of such power is immune from being questioned, as it

is not justiciable.

(h) Once the Chief Justice takes an action pursuant to the rules

which have been approved by the Governor, such action does not require

any further approval. If no approval of the Governor is necessary, the state

government has no right to question the same, as that will run contrary to

the autonomy of the Chief Justice as contemplated under Article 229(2) of

the Constitution of India. The action of Chief Justice is non-justiciable.

Under the usual circumstances, Gopinath Dey would not have been

entitled to the increment, but the government had approved the same. Thus

it had acquired a new dimension to justify the grant of higher pay to the

respondents. The circumstances in which it was granted, were found to be

exceptional due to which the Chief Justice has exercised his discretion.

The wisdom of Chief Justice being non-justiciable, the state government

cannot object to the same."

14. The said order is challenged in these appeals by special leave by the

State of West Bengal on the following grounds :

(i) The senior employees through their repeated representations sought

relief under rule 55(4) of the WBSR. The Special Committee consciously

considered the merits of their claim with reference to the Rule 55(4) and

made its recommendations expressly under the said Rule. The learned

Chief Justice by his order dated 13.2.2003 merely accepted the said

recommendation based on Rule 55(4). The learned Single Judge and the

division bench found that Rule 55(4) was not attracted. Having reached such

conclusion, the division bench could not justify the order dated 13.2.2003 of

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the Chief Justice by inferring that the Chief Justice must have granted relief

in exercise of discretion under Rule 49 of WBSR.

(ii) Even assuming that Rule 49 of the WBSR could be regarded in itself

as a source of power, in the absence of any consideration either by the

Special Committee or by the Chief Justice, as to whether the fixation of pay

in the post of LDA for Gopinath Dey at par with the last pay drawn by him

in the old post of grade-I Typist/Section Writer could not be regarded as an

`exceptional circumstance' for granting all Senior Lower Division Assistants

pay protection. In the absence of exceptional circumstances, which is the

condition precedent for the exercise of the power under Rule 49, the said

rule cannot be invoked to justify the order of the Chief Justice.

(iii) In view of Rule 42 (1)(ii) of the WBSR, the fixation of pay of

Gopinath Dey at higher initial start in the pay scale of LDA at par with the

last pay drawn by him in the old post of Grade-I Typist/Section Writer was

erroneous. Such wrong and illegal pay fixation will not entitle the other

LDAs senior to him, to the same higher initial start, when all of them were

being paid pay admittedly according to the pay scale for LDAs and at the

stages to which they were otherwise entitled.

(iv) Having held that the fixation of pay at higher initial start for Gopinath

Dey as a LDA was incorrect in terms of Rule 42(i)(ii) of the WBSR and

Rule 55(4) of the WBSR was not applicable, the Division Bench could not

justify the order of the Chief Justice extending pay protection to his seniors

with reference to Rule 49 of WBSR. The Division Bench also fell into an

error in holding that the order of the Chief Justice was non-justiciable in writ

jurisdiction.

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15. On the contentions urged, the following questions arise for our

consideration :

(i) Whether the respondents (employees senior to Dey) were entitled to

re-fixation of their pay at par with the pay of their junior namely Dey, under

Rule 55(4) of the WBSR (Part I) or under any other service law principle?

(ii) If the relief granted to the respondents (employees senior to Dey)

could not be supported with reference to Rule 55(4), whether it could be

inferred that the order of the Chief Justice permitting the pay of the said

senior employees to be brought at par with the pay of Dey, was passed in

exceptional circumstances under Rule 49 of WBSR (Part I)?

(iii) Whether the order of Chief Justice dated 13.2.2003 is not justiciable ?

Re : Question (i) :

16. Rule 55(4) of WBSR, on which the senior employees placed reliance,

to claim parity with the pay of Gopinath Dey, reads thus :

"55(4). If a government employee while officiating in a higher post draws

pay at a rate higher than his senior officer either due to fixation of his pay

in the higher post under the normal rules, or due to revision of pay scales,

the pay of the government employees senior to him shall be re-fixed at the

same stage and from the same date his junior draws the higher rate of pay

irrespective of whether the lien in the lower post held by the senior officer

is terminated at the time of re-fixation of pay, subject to the conditions that

both the senior and junior officers should belong to the same cadre and the

pay scale of the posts in which they have been promoted are also identical.

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The benefit of this rule shall not be admissible in case where a senior

government employee exercises his option to retain un-revised scale of

pay, or where the pay drawn by the senior officer in the lower post before

promotion to the higher post was also less than that of his junior."

On a careful reading of Rule 55(4), it is evident that two conditions will have

to be fulfilled for attracting the benefit under the said rule. The first is that

the junior employee as also the senior employees must be promotees.

Secondly, they must come from the same cadre having the same scale of pay

in their feeder post. Neither of the said conditions is fulfilled in this case. In

fact, this finding was rendered by the learned Single Judge and was affirmed

by the Division Bench. The Division Bench held :

"Admittedly, Rule 55(4) is not applicable on two reasons. First, that Rule

55(4) was inserted in WBSR subsequent to its adoption by the High Court.

Admittedly, the High court did not adopt the same. On account of thereof,

benefit of Rule 55(4) would not applicable to the employees of the High

Court. Second, Rule 55(4) applies in case of promotion or officiation in a

higher port, as rightly contended by Mr. Ray. The post of LDA is neither a

higher nor a promotional post. Rule 55(4) would, therefore, not be

applicable in this case."

On a careful consideration, we find no reason to interfere with the said

concurrent finding that Rule 55(4) is inapplicable.

17. We may now consider whether the private respondents are entitled to

stepping up of their pay to bring it at par with that of Dey under the general

principle of service jurisprudence. The principles relating to stepping up of

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pay of the seniors with reference to the higher pay of a junior are now well

settled. We may refer to a few of the decisions of this Court in that behalf. In

State of Andhra Pradesh vs. G. Sreenivasa Rao - (1989) 2 SCC 290, this

Court observed :

"Equal pay for equal work" does not mean that all the members of a cadre

must receive the same pay-packet irrespective of their seniority, source of

recruitment, educational qualifications and various other incidents of

service. When a single running pay-scale is provided in a cadre the

constitutional mandate of equal pay for equal work is satisfied. Ordinarily

grant of higher pay to a junior would ex-facie be arbitrary but if there are

justifiable grounds in doing so the seniors cannot invoke the equality

doctrine. To illustrate, when pay-fixation is done under valid statutory

Rules/executive instructions, when persons recruited from different

sources are given pay protection, when promotee from lower cadre or a

transferee from another cadre is given pay protection, when a senior is

stopped at Efficiency Bar when advance increments are given for

experience/passing a test/acquiring higher qualifications or as incentive for

efficiency ; are some of the eventualities when a junior may be drawing

higher pay than his seniors without violating the mandate of equal pay for

equal work. The differentia on these grounds would be based on

intelligible criteria which has rational nexus with the object sought to be

achieved."

(emphasis supplied)

This Court held that High Courts and Tribunals should not, in an omnibus

manner come to the conclusion that whenever and for whatever reasons, a

junior is given higher pay, the doctrine of `equal pay for equal work' is

violated and the seniors are entitled to the same pay, irrespective of the

scope of the relevant Rules and the reasons which necessitated fixing of

higher pay for juniors.

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18. In Chandigarh Administration vs. Naurang Singh - (1997) 4 SCC

177, this Court held that principle of `equal pay for equal work' and stepping

up of pay would not apply where higher scale was granted to some persons

by an evident mistake. This Court held :

"We are, however, of the opinion that a mistake committed by the

Administration cannot furnish a valid or legitimate ground for the Court or

the Tribunal to direct the Administration to go on repeating that mistake.

The proceedings placed before us clearly show that the pay revision of

September 19, 1975 was an unscheduled one, effected merely on the basis

of a letter written by the Principal of the College. The Administration no

doubt could have rectified that mistake. That would have been the most

appropriate course but their failure to do so cannot entitle the respondents

to say that mistake should form a basis for giving the higher pay scale to

them also. The proceedings of the Administration dated 19.8.1982 clearly

shows that the said higher pay scale was treated as personal to the then

existing incumbents. As stated above that was really the pay scale

admissible to the post of Assistants which was a promotion post to

storekeepers. Both these posts cannot be given the same pay scale....An

evident mistake cannot constitute a valid basis for compelling the

administration to keep on repeating that mistake."

(emphasis supplied)

19. In Union of India vs. R. Swaminathan - (1997) 7 SCC 690, this Court

considered the government order dated 4.2.1966 issued for removal of

anomaly by stepping up of pay of a senior on promotion drawing less pay

than his junior. This Court held :

"11. As the Order itself States, the stepping up is subject to three

conditions: (1) Both the junior and the senior officers should belong to the

same cadre and the posts in which they have promoted should be identical

and in the same cadre; (2) the scales of pay of the lower and higher posts

should be identical and: (3) anomaly should be directly as a result of the

application of Fundamental Rule 22-C which is now Fundamental Rule

22(I)(a)(1). We are concerned with the last condition. The difference in

the pay of a junior and a senior in the cases before us is not a result of the

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application of Fundamental Rule 22(I)(a)(1). The higher pay received by a

junior is on account of his earlier officiation in the higher post because of

local officiating promotions which he got in the past. Because of the

proviso to Rule 22 he may have earned increments in the higher pay scale

of the post to which he is promoted on account of his past service and also

his previous pay in the promotional post has been taken into account in

fixing his pay on promotion. It is these two factors which have increased

the pay of the juniors. This cannot be considered as an anomaly requiring

the stepping of the pay of the seniors.

The Office Memorandum dated 4.11.1993. Government of India,

Department of Personnel & Training, has set out the various instances

where stepping of pay cannot be done. It gives, inter alia, the following

instances which have come to the notice of the department with a request

for stepping up of pay. These are:

(a) Where a senior proceeds on Extra Ordinary Leave which results

in postponement of date of Next Increment in the lower post,

consequently he starts drawing less pay than his junior in the lower

grade itself. He, therefore, cannot claim pay parity on promotion

even though he may be promoted earlier to the higher grade

(b) If a senior foregoes/refuses promotion leading to his junior being

promoted/appointed to the higher post earlier, junior draws higher

pay than the senior. The senior may be on deputation while junior

avails of the ad hoc promotion in the cadre. The increased pay drawn

by a junior either due to ad hoc officiating/ regular service rendered

in the higher posts for periods earlier than the senior, cannot,

therefore, be an anomaly in strict sense of the term.

(c) If a senior joins the higher post later than the junior for

whatsoever reasons, whereby he draws less pay than the junior, in

such cases senior cannot claim stepping up of pay at par with the

junior.

x x x x

There are also other instances cited in the Memorandum. The

Memorandum makes it clear that in such instances a junior drawing more

pay than his senior will not constitute an anomaly and, therefore, stepping

up of pay will not be admissible. The increased pay drawn by a junior

because of ad hoc officiating or regular service rendered by him in the

higher post for periods earlier than the senior is not an anomaly because

pay does not depend on seniority alone nor is seniority alone a criterion

for stepping up of pay."

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20. The facts narrated above, without anything more, would clearly show

that Dey was given a higher pay for wholly erroneous reasons. Firstly he

was given Grade I promotion of Section Writer (Typist) in the scale of `

380-910 under the ROPA Rules, 1981 with effect from 2.4.1981 even

though he was not confirmed in the lower post at that time. Secondly, even

though Dey was appointed as Lower Division Assistant as a direct recruit in

the scale of ` 300-685 with effect from 9.9.1985, he was given the benefit of

second higher scale under the Career Advancement Scheme, with effect

from 1.4.1989, by taking note of his previous service. Dey voluntarily chose

to appear for selection as a Lower Division Assistant which carried a lesser

pay scale when compared to the pay scale to which he was entitled as a

Grade-I Typist, obviously because of better future prospects available to

Lower Division Assistants. Having been appointed as a Lower Division

Assistant on 9.9.1985, he was not entitled to the benefit of second higher

scale with effect from 1.4.1989, as that benefit was available only at the end

of 20 years service under the career advancement scheme. If these two

benefits erroneously given were deleted, there would be no ground for the

seniors to claim any benefit on the basis of parity of pay. Even otherwise, as

Dey was getting a higher pay in view of the earlier promotion as Section

Writer/Typist, when he was selected and appointed as Lower Division

20

Assistant, he was given pay protection and thus became entitled to a higher

pay than what he would have normally received. His case was completely

different from the case of his seniors and his seniors could not therefore

claim parity in pay and stepping up of pay to match the pay of Dey.

Therefore, the learned Single Judge and the Division Bench rightly held

even that Rule 55(4) was inapplicable. The fact that a mistake was

committed in the case of Dey by extending the benefit of second higher scale

under Career Advancement Scheme cannot be a ground for the Chief Justice

to direct perpetuation of the mistake by directing similar benefit to other

senior employees. Further, in view of his previous service between 1964 and

1985 and in view of the fact he was getting a higher pay (in a higher pay

scale) when he was appointed thereby entitling him to benefit of pay

protection, his seniors who were not in a comparable position were not

entitled to seek higher pay with reference to the pay of Dey.

21. It is now well settled that guarantee of equality before law is a

positive concept and cannot be enforced in a negative manner. If an illegality

or an irregularity has been committed in favour of any individual or group of

individuals, others cannot invoke the jurisdiction of Courts and Tribunals to

require the state to commit the same irregularity or illegality in their favour

21

on the reasoning that they have been denied the benefits which have been

illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New

Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs.

Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs.

International Trading Co. - 2003 (5) SCC 437, and State of Bihar vs.

Kameshwar Prasad Singh - 2000 (9) SCC 94. This question was

exhaustively considered in Chandigarh Administration vs. Jagjit Singh -

1995 (1) SCC 745, wherein this Court explained the legal position thus :

"8. The basis or the principle, if it can be called one, on which the writ

petition has been allowed by the High Court is unsustainable in law and

indefensible in principle. Generally speaking, the mere fact that the

authority has passed a particular order in the case of another person

similarly situated can never be the ground for issuing a writ in favour of

the petitioner on the plea of discrimination. The order in favour of the

other person might be legal and valid or it might not be. That has to be

investigated first before it can be directed to be followed in the case of the

petitioner. If the order in favour of the other person is found to be contrary

to law or not warranted in the facts and circumstances of his case, it is

obvious that such illegal or unwarranted order cannot be made the basis of

issuing a writ compelling the respondent-authority to repeat the illegality

or to pass another unwarranted order. The extra-ordinary and discretionary

power of the High Court cannot be exercised for such a purpose. By

refusing to direct the respondent-authority to repeat the illegality, the court

is not condoning the earlier illegal act/order nor can such illegal order

constitute the basis for a legitimate complaint of discrimination. Giving

effect to such pleas would be prejudicial to the interests of law and will do

incalculable mischief to public interest. It will be a negation of law and the

rule of law."

We are therefore of the view that neither under Rule 55(4) of WBSR nor

under the general principles of service jurisprudence, the seniors were are

22

entitled to claim benefit of re-fixation of their pay at par with the pay of their

junior Dey.

Re : Question (ii) :

22. The representation given by the senior employees was for re-fixing

their pay at par with the pay of Dey by relaxing Rule 55(4) of WBSR. The

basis of their claim was Rule 55(4) and they sought relief by relaxing the

said rule. The first report of the Special Committee dated 2.12.1998

considered the claim of senior employees under Rule 55(4) and categorically

held that the said rule was inapplicable to their claim. The subsequent

reports of the Committee dated 27.11.2002 and 20.1.2003 held that the

employees who were senior to Dey, could not get a lesser pay than Dey, in

keeping with the principle of Rule 55(4) and recommended grant of relief

accordingly. The Registrar (Original Side), High Court put up a note placing

the report of the Special Committee dated 20.1.2003 and sought approval of

the said recommendation of the Special Committee for the senior employees

being granted relief by way of pay protection by stepping up their pay at par

with that of Dey. The Chief Justice concurred with the said proposal,

without noting any other reason and thus, the Chief Justice merely accepted

the reasons assigned by the Special Committee in their recommendation

23

dated 20.1.2003. Even in their writ petitions, the senior employees made the

claim only based on Rule 55(4). Neither the claim of the senior employees,

nor the report of the Special Committee nor the order of the Chief Justice at

any point of time, in any document, refer to any exceptional circumstances

warranting the grant of increments prematurely to the employees senior to

Dey by stepping up their pay at par with the pay of Dey. Rule 49 of WBSR

was neither relied upon nor referred to by the senior employees in their

representation, or by the Special Committee in their recommendations or by

the Chief Justice in his order. Nor did the senior employees who were the

writ petitioners, rely upon or refer to Rule 49 in the writ petition, as the

source of power for the order dated 13.2.2003. In these circumstances, it is

ununderstandable how the division bench of the High Court, having held in

the impugned order that Rule 55(4) was inapplicable, could justify the order

of the Chief Justice with reference to Rule 49.

23. Rule 49 of WBSR (Part I) relates to premature increments and reads

thus : "Save in exceptional circumstances and under specific orders of

government, no government employee on a time scale of pay may be granted

a premature increment in that time scale". The proviso to Rule 23 of the

Calcutta High Court Service Rules, 1960, no doubt, provides that "the power

exercisable under the West Bengal Service Rules by the Governor of the

24

State shall be exercised by the Chief Justice" in regard to the members of

High Court service. If Rule 49 had to be invoked, exceptional circumstances

should have existed and should have been referred to in the recommendation

by the Special Committee or in the order of the Chief Justice. The

assumption made by the division bench that when an order of the Chief

Justice granting relief cannot be justified with reference to any Rule or legal

principle, it should be inferred that the order was made in exceptional

circumstances, is erroneous and cannot be accepted. A provision for granting

higher pay by way of premature increment in exceptional circumstances,

cannot be used to give relief to a large number of employees, without the

existence of any exceptional circumstances. The fact that a single employee

(Dey) was wrongly given some benefit is certainly not an exceptional

circumstance to perpetuate the mistake in the case of all his seniors.

24. The division bench does not refer to any other exceptional

circumstances. The logic of the division bench that the very fact that the

Special Committee has made a recommendation and the very fact that the

Chief Justice had accepted the recommendation and made an order granting

relief, are indications of exceptional circumstances, is preposterous,

irrational and arbitrary. The finding of the division bench that exceptional

25

circumstances existed for stepping up the pay of large number of employees

and therefore, the source of power for the order dated 13.2.2003 of the Chief

Justice, is Rule 49 of WBSR is erroneous and improper and cannot be

sustained.

Re : Question (iii)

25. We may next consider the correctness of the finding of the division

bench that the order dated 13.2.2003 of the Chief Justice is not justiciable

and the state government cannot challenge it in a court of law. At the outset,

we may note that in a democracy, governed by rule of law, where

arbitrariness in any form is eschewed, no government or authority has the

right to do whatever it pleases. Where rule of law prevails, there is nothing

like unfettered discretion or unaccountable action. Even prerogative power is

subject to judicial review, but to a very limited extent. The extent, depth and

intensity of judicial review may depend upon the subject matter of judicial

review (vide observation of Constitution Bench in B.P. Singhal vs. Union of

India - 2010 (6) SCC 331). The fact that in regard to certain types of action

or orders of Chief Justice, the scope of judicial review may be very narrow

and limited is different from saying that an order of the Chief Justice

26

granting certain relief to High Court employees whose service conditions are

governed by Rules, is not justiciable. Such orders are justiciable.

26. We may refer to the principles relating to the power and discretion of

a Chief Justice of a High Court under Article 229(2) which reads thus :

"229(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 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..."

In exercise of the powers conferred by Article 229 of the Constitution of

India, the Chief Justice of the High Court of Calcutta, with the approval of

the Governor of the State of West Bengal, so far as the rules relate to

salaries, allowances, leave and pensions, made the Calcutta High Court

Service Rules, 1960, with respect to the appointment of persons to, and the

conditions of service of persons serving on, the staff attached to the High

Court. While the Chief Justice has the power to amend the Rules, he does

not have the power to ignore the Rules. Rule 23 of the Calcutta High Court

Service Rules, 1960 provided thus :

27

"Subject to the following exceptions, the provisions of the West Bengal

Service Rules in so far as they relate to salaries, leave and allowances,

shall apply to the members of the High Court Service, Class - I, II, III and

IV, as they apply to government servants of the corresponding classes in

the service of the Government of West Bengal.

Provided that the powers exercisable under the West Bengal Service Rules

by the Governor of the State shall be exercised by the Chief Justice and

the power exercisable by any authority sub-ordinate to the Governor shall

be exercised by the Chief Justice or by such person or persons as he may,

by general or special order, direct."

27. In M. Gurumoorthy vs. Accountant-General, Assam and Nagaland -

1971 (2) SCC 137, this Court held that Article 229 contemplates full

freedom to the Chief Justice of the High Court in the matter of appointment

of officers and servants of the High Court and their conditions of service.

The unequivocal and obvious intention of the framers of the Constitution in

enacting Article 229 is that in the matter of such appointments, 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. Even the Legislature cannot abridge or modify the

powers conferred on the Chief Justice.

28. In State of UP vs. C. L. Agrawal - (1997) 5 SCC 1, a Constitution

Bench of this Court considered a dispute relating to the competence of the

Chief Justice of the High Court to grant advance/premature increments to an

employee working in the High Court :

28

"The state government was of the view that the Chief Justice could not

grant advance/premature increments without prior approval of the

Governor. Instead of directly challenging the Chief Justice's competence,

the State Government refused to take into account premature increments

sanctioned to the respondent by the Chief Justice of the Allahabad High

Court, while determining respondent's pensionary benefits. The matter

was examined with reference to, (i) Article 229(2) and proviso thereunder,

which lay down that the conditions of service of officers and servants of a

High court shall be regulated by the rules made by the Chief Justice, etc.

and the rules, if they relate to salaries, allowances, etc., shall require

Governor's approval; (ii) Rule 3, two provisos to Rule 40(2) and proviso

to Rule 41 of the Allahabad High Court Officers and Staff (Conditions of

Service and Conduct) Rules, 1976, which provide for creation of

temporary posts with the approval of the Governor; applicability of state

government rules to the High Court staff with such modifications, etc., as

the Chief Justice may specify; obtaining of the Governor's approval where

such modification, etc., relates allowances, leave or pensions; exercise of

Governor's power by the Chief Justice in relation to High Court staff; (iii)

Rule 27 of the Financial Handbook, Vol.II, Parts II to IV, which says that

`an authority may grant a premature increment to a government servant on

a time scale of pay if it has power to create a post in the same cadre on the

same scale of pay."

Reading together the two provisos to Rule 40(2) of the Allahabad High court

Officers and Staff (Conditions of Service and Conduct) Rules, 1976, this

Court held that it was apparent that the rules and orders referred to therein

were the rules and orders of a general nature and not orders made in

individual cases; that insofar as officers and servants of the High Court were

concerned, it was enough that the Chief Justice exercised the powers

conferred upon the Governor under such rules and orders of the government

and no further approval by the Governor is required. This Court also held

that even in Rule 41, the reference was to the making of general orders and

29

not the orders in individual cases. The order of the Chief Justice granting

premature increments did not therefore require the approval of the Governor.

It was held that as the Chief Justice had the power to create posts in the High

Court, it was the Chief Justice who could grant premature increments under

Rule 27 of the Financial Handbook, to the officers and servants of the High

Court, and even if it was to be assumed that advance increments under Rule

27 could be granted by the Governor, the Chief Justice would exercise

Governor's power by virtue of second proviso to Rule 40(2) of the 1976

Rules.

29. In High Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal

- (1998) 3 SCC 72, this Court was considering the correctness of a direction

given under Article 226, by a division bench of the High Court to the

Registrar to prepare a report regarding the practicability of certain posts

being manned by the officers from the establishment of the High Court

instead of by Higher Judicial Officers and place it before the Full Court

through the Chief Justice for taking a decision whether Judicial Officers

could be relieved of such administrative posts in the High Court. This Court

found that Rules 2, 2-A of, and Schedule I to the Rajasthan High Court

(Conditions of Service of Staff) Rules, 1953, made by the Chief Justice in

30

exercise of power conferred by Article 229, specified the posts on which

officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial

Service were to be appointed. The method of recruitment had also been

indicated. All appointments on these posts were to be made by the Chief

Justice. The rules could be altered, amended or rescinded only by the Chief

Justice who alone has the rule making power. This Court held that the real

purport of the directions issued by the division bench on the judicial side

was to override not only the constitutional provisions contained in Article

229 but also the rules made in exercise of powers available to the Chief

Justice under that article. Even if the Registrar, in compliance of the

impugned directions, is to report that the posts on which officers of the

Rajasthan Higher Judicial Service or Rajasthan Judicial Service are

appointed on deputation, could well be manned by the High Court staff itself

and even if such report is placed before the Full Court, the Full Court cannot

give a direction to the Chief Justice not to fill up those posts by bringing

officers on deputation but to fill up those posts by promotion from amongst

the High Court staff. A Judge of the High Court individually or all the

Judges sitting collectively, as in the Full Court, cannot either alter the

constitutional provisions or the rules made by the Chief Justice. The Chief

Justice has been vested with wide powers to run the High Court

31

administration independently so as not to brook any interference from any

quarter, not even from his brother Judges who, however, can scrutinize his

administrative action or order, on the judicial side, like the action of any

other authority.

30. It is therefore clear that the Chief Justice has the power and authority

to grant premature increments in exceptional circumstances. But the Chief

Justice cannot grant such relief in an irrational or arbitrary manner. If the

Rules provide that premature increments could be granted in exceptional

circumstances, there should be a reference to the existence of exceptional

circumstances and application of mind to those exceptional circumstances.

When neither the recommendation considered by the Chief Justice nor the

order of the Chief Justice referred to any exceptional circumstances and did

not even refer to the Rule relating to grant of relief in exceptional

circumstances, the question of assuming exceptional circumstances does not

arise. The order dated 13.2.2003 is justiciable.

Conclusion

30. In view of the above, none of the seniors was entitled to any relief

with reference to the pay of their junior Gopinath Dey. We therefore, allow

32

these appeals, set aside the order of the division bench and restore the order

of the learned Single Judge dismissing the writ petitions.

............................J

[R. V. Raveendran]

............................J

[Markandey Katju]

New Delhi;

September 14, 2011.