GOVERNMENT, HOME (CTS.V) DEPARTMENT, SECRETARIAT, CHENNAI.
2 THE REGISTRAR GENERAL, HIGH COURT, MADRAS (R2 IMPLEADED VIDE COURT ORDER DT 18/12/2018, MADE IN WMP.NO.39302/18 IN WP.NO.22730/18 BY MVJ AND RPAJ) Writ Petition under
Article 226 of the Constitution of India praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to issue an order or a direction or a writ or a writ more specifically of Writ of Mandamus directing the respondent to accept and implement the recommendation of the Honourable Chief Justice of Madras High Court, as communicated by the Registrar General, vide. his letter in Roc.No. 61942/B/ 2016/G2, dated 10.02.2017 for the revision of the pay structure in favour of the staff of the Honourable High Court, Madras on par with the pay structure of the staff of the Honourable Supreme Court of India with in a time frame as may be http://www.judis.nic.in fixed by this Honourable Court (WP.22730/2018) Order : This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of M/S.J.NAGARAJAN, Advocate for the petitioner and of MR.S.N.PARTHASARATHY, Government Advocate on behalf of the 1st respondent and of M/S.DURAI EASWAR, Advocate for the 2nd Respondent the court made the following order:-
(Order of the Court made by M. VENUGOPAL,J.,) According to the Petitioners, the First Petitioner joined services of Hon'ble High Court based on the proper recruitment conducted in the year 1988. The First Petitioner was selected as an Assistant with effect from 06.02.1989. He was blessed with subsequent promotions on merits and seniority. He retired as Assistant Registrar of this Court and the Second and Third Petitioners are working as Assistant Registrar (A.S.,) and Deputy Registrar (Current Section) respectively. The service of the Hon'ble High Court requires high calibre and also requires late hour sitting after the Office Hours. In view of the nature of same service condition and work nature of Hon'ble Supreme Court and all the High Courts, the pay structure would be on the basis of 'equal pay for equal work'.
2. As a matter of fact, the pay structure of the Delhi High Court is on higher side than the other High Courts and is equivalent to the Hon'ble Supreme Court. Furthermore, the nature of duties is one and the same for all High Courts in India and the Hon'ble Supreme Court. Significantly, the pay structure of numerous cadre under all categories of this Court are at alarming variance.
3. The version of the Petitioners in the present Writ Petition is that recently, the pay structure of the Karnataka High Court was enhanced to the level of Hon'ble Supreme Court after a court verdict. The staff and service Association of this Court frequently claim demand for pay structure on a par with that of the Hon'ble Supreme Court of India and the Hon'ble High Court of new Delhi.
4. After much deliberation and consideration an earnest Appeal was made to the Hon'ble Chief Justice of this Court in this regard. The Petitioners' Service Association had submitted a Representation dated 08.08.2016 to the Hon'ble Chief Justice, High Court, Madras, wherein, they had prayed for issuance of suitable instructions for addressing the Government of Tamil Nadu to fix the pay structure of the staff members of the Madras High Court and its Bench at Madurai on par with the salary structure of the Hon'ble Supreme Court of India. The said Representation of the Association was forwarded by the Second Respondent/Registrar General, High Court, Madras to the First Respondent/The Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai with the recommendation of Hon'ble Chief Justice for grant of enhanced pay structure in http://www.judis.nic.in favour of the staff member of Madras High Court on par with the pay structure of the Hon'ble Supreme Court of India. Furthermore, such a recommendation of Hon'ble Chief Justice of this Court was communicated by the Second Respondent/Registrar General, High Court, Madras on 10.02.2017 in Roc No.61942/B/2016/G2 to the Government for issuance of necessary Orders.
5. The grievance of the Petitioners is that the issuance of an order for granting pay parity with that of the Hon'ble Supreme Court of India is lying in 'Cold Storage' and the 'Law of Equity' and Fair play would come into operative play. Further that, no discrimination on pay structure among the persons of similarly placed and equal status can be made. The delay in accepting the proposals of the Hon'ble Chief Justice of this Court would vitiate the interest of persons like the Petitioners. Those individuals who are on the verge of Retirement, are legitimately expecting due pay enhancement at least at the fag end of their service career.
6. The Petitioners take a plea that the interest of deserving staff members of this Court are at stake and a direction from this Court is the only solace to the staff members. Apart from that, the proposal of the Hon'ble Chief Justice of this Court is pending with the State Government for more than a year and half. In fact, the recommendation of the Hon'ble Chief Justice of Hon'ble High Court cannot be delayed on any ground, even assuming that the State Government would incur financial burden.
7. It transpires that the Registrar General of High Court, Madras/Second Respondent had addressed a communication in ROC No.61942/B/2016/G2 dated 10.02.2017 to the Principal Secretary to Government, Home (Cts V) Department, Secretariat, Chennai – 9, forwarding the proposal (in regard to the requisitions submitted by the Madras High Court and Madurai Bench Officers and Staff Association, High Court, Madras regarding the Revision of the pay structure on par with the Hon'ble Supreme Court of India).
8. Added further, in the aforesaid Communication dated 10.02.2017, the Registrar General, High Court, Madras/Second Respondent had mentioned that the proposal for enhanced pay in respect of certain categories of posts is based on the similar pay band of other categories in the Hon'ble Delhi High Court and also taking into consideration, the 'Hierarchy of categories' and their pay scales in the Madras High Court Service and also added that, a 'Comparative Analysis' regarding the pay structures of various High Courts was made and the pay structure proposed is based on the Delhi High Court pay structure.
9. It is represented that the aforesaid matter was placed before the Hon'ble Staff Grievance Committee and the said Committee had directed the Registry to address the Government for earliest consideration. In fact, the Hon'ble Staff Grievance Committee's direction was approved by the Hon'ble Chief Justice http://www.judis.nic.in of this Court as mentioned by the Second Respondent in his communication dated 10.02.2017.
10. In short, the Registrar General of High Court, Madras/Second Respondent in Roc No.61942/B/2016/G2 dated 10.02.2017 had requested the Government for securing necessary orders from the Government pertaining to the revised pay as proposed by High Court and communicate the same to the High Court immediately.
11. In fact, the Registrar General of Madras High Court/Second Respondent, in a crystalline manner in the aforesaid communication dated 10.02.2017, had stated that he was directed to recommend the proposal to Government in respect of the pay structure, based on the Delhi High Court along with the financial implication involved therein, as an annexure to the letter. However, till date, the Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai – 9/ the First Respondent has not responded positively and according to Mr.S.N. Parthasarathy, learned Government Advocate appearing for the First Respondent/The Principal Secretary to Government has sought for brief history and para wise remarks from the Registrar (Administration) of this Court for filing of counter by the Government.
12. It is to be noted that the recommendation of the proposal made to the Government in respect of the pay structure, in question, relating to the staff members of this Court require diligent, timely due attention and consideration by the State Government.
13. At the outset, this Court pertinently points out that that the Hon'ble High Court in exercise of jurisdiction under
Article 226 of the Constitution of India shall not entertain a matter based on theoretical or hypothetical grievances of the persons. As a matter of fact, the High Court under
Article 226 of the Constitution of India is required to enforce the Law and cannot pass an order or direction, which is contrary to Law. Indeed, the power of 'Judicial Review' under
Article 226 of the Constitution of India is confined to the 'Decision Making Process' and not directed against the Decision.
14. Under
Article 226 of the Constitution of India, the High Court is empowered to exercise its extraordinary jurisdiction and the said power is required to be used sparingly. The Judicial Review is the heart and soul of the Constitutional Scheme of things and that Judiciary is the final interpreter of the Constitution and that the
Article 226 of the Constitution is couched in widest possible terms.
15. The aim of
Article 229 of the Constitution of India is to secure the independence of High Court and the same is not possible unless the authority to appoint Subordinate Staff with http://www.judis.nic.in complete control over that is vested in the Hon'ble Chief Justice. The Hon'ble The Chief Justice is vested with wide powers to run Administration independently. The Hon'ble Chief Justice of Madras High Court, subject to the Rules made under
<act id=zbGxPokB_szha0nWKNIH section=229>Article 229 (2) </act>of the Constitution of India is the single Authority for fixing the salaries and controlling the High Court Employees and as such, the said Employees of the High Court are taken outside the ambit of
Article 309 of the Constitution of India, in the considered opinion of this Court.
16. It is to be pointed out that under
Article 229 of the Constitution of India, the Hon'ble Chief Justice of High Court exercises control over its Staff and as per
Article 235, the Hon'ble High Court exercises control over the Subordinate Courts.
17. At this juncture, this Court worth, recalls and recollect the decision of this Court in M.S.Saraswathi and others vs The State of Tamil Nadu reported in 1996 Vol. 2 MLJ 84, at special page No.87, wherein, in paragraph No.10, it is observed as follows:.
10. Article 229 of the Constitution vests in the High Court the control over its staff in order to free the Court from any interference from the Government in relation to the administration of the Court. The nature of the work performed by the officials in the Court is best known to the Court and not to the Government and when a recommendation is made by the Hon'ble the chief Justice to the effect that the work performed by the petitioners employed in Court is similar to that of the persons similarly placed in the Secretariat and the scale of pay of the two posts should be identical, it is not permissible for the Government to disregard the recommendations and persist in holding a contrary view. Such an attitude of the Government is wholly impermissible having regard to the object of
Art. 229. In such circumstances of the case, it is also violative of the petitioners' rights under
Art. 14 of the Constitution inasmuch as it has not denied to them similar treatment in so far as their emoluments are concerned, on par with that of the persons similarly placed in the Secretariat Services.
18. Also, in the aforesaid decision, at Page No.88 at Paragraph http://www.judis.nic.in No.14, it is observed as follows: “ 14. Very recently this Court (AR.
Lakshmanan,J.,) has allowed the writ petition in W.P.No.24781 of 1995 dated 19.01.1996 filed by the staff members of the Madras High Court Official Assignee Service to revise the scale of pay relating to the Madras High Court Official Assignee Service on par, with that of the members of the similar category in the Madras High Court Service. The Hon'ble The Chief Justice has also recommended that all the posts in the Madras High Court Official Assignee Service may be given the same scale of pay as for the similar categories in the Madras High Court Service. This Court while allowing the writ petition, directed the respondents therein to change the nomenclature of the staff in the Madras High Court Official Assignee Service and the Tamil Nadu Secretariat Service and further directed the respondents to revise and refix the scales of pay of the Madras High Court Official Service and the Tamil Nadu Secretariat Service within a specified period. This Court also recommended that the staff of the Madras High Court Official Assignee Service are to be treated as integral part of the Madras High Court Service and also further recommended that there is no need to have a separate set of rules for the staff of the Official Assignee Office, as they are also a part of the staff of the High Court.”
19. Further, this Court aptly points out the decision of the Hon'ble Supreme Court in State of Utter Pradesh vs Section Officer Brotherhood and Another, reported in (2004) 8 SCC 286, at Special Page No.287, wherein, it is held as under:
“ 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. This provision has evidently been made to uphold the independence http://www.judis.nic.in of the judiciary. This provision shows 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.”
20. Be that as it may, in view of the fact that the Letter of the Second Respondent/Registrar General, high Court, Madras vide Roc No.61942/B/2016/G2 dated 10.02.2017 requires urgent consideration and attention of the First Respondent/The Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai, without further any loss of time, this Court, at this stage, to prevent an aberration of Justice and in furtherance of substantial cause of Justice, directs the First Respondent/The Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai – 9 to file its counter on or before 18.02.2019 expounding its stand in a qualitative and quantitative manner specifying clearly whether His Excellency, the Governor of Tamil Nadu has given his approval because of the financial implication involved in the subject manner in issue and also the present stage as to whether the matter stands at present in a detailed manner.
21. Mr.S.N.Parthasarathy, learned Government Advocate appearing for the First Respondent/ The Principal Secretary to Government, Home (Cts.V) Department, Secretariat, Chennai – 9 is directed to serve copy of the Counter well in advance to the learned counsel for the Petitioners as well as to the Learned Counsel for the Second Respondent/Registrar General, High Court, Madras.
22. In the meanwhile, it is open to the Second Respondent/Registrar General, High Court, Madras to file a Status Report of the Representation dated 08.08.2016 made by the Staff Association of this Court and Madurai Bench Officers and Staff Association, High Court, Madras – 104.
23. The Second Respondent/Registrar General, High Court, Madras is directed to produce the entire file pertaining to Hon'ble Staff Grievance Committee and its decisions and the subsequent approval obtained in this regard.
24. The Registry is directed to list the matter on 18.02.2019.
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30/01/2019 / TRUE COPY / Sub-Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104.
http://www.judis.nic.in TO 1 THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME (CTS.V) DEPARTMENT, SECRETARIAT, CHENNAI.
2 THE REGISTRAR GENERAL, HIGH COURT, MADRAS 3 THE SECTION OFFICER, LEGAL CELL, HIGH COURT, CHENNAI.
4 THE SECTION OFFICER, WRIT SECTION, HIGH COURT, CHENNAI.
C.C. to M/S.J.NAGARAJAN Advocate on payment of necessary charges C.C. to M/S.DURAI EASWAR Advocate on payment of necessary charges The Government Advocate, High Court, Chennai.
From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this format RRI 10/01/2019 KP(31/01/2019) (IT) KP(01/02/2019) http://www.judis.nic.in