# Kamlendra Pratap Singh v. State of

- **Citation:** (2009) 2 ILRA 472
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-27
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlendra-pratap-singh-v-state-of-41636
- **Pages:** 18

## Headnote

Sri Zafar Naiyer, Addl. Adv. General
Sri K.R. Sirohi
Sri Yashwant Verma
Sri Rajni Kant Tiwari
Sri J.K. Khanna
Sri M.C. Tripathi
S.C.

Constitution of India, Art. 229 (2)-Pay
Scale-Parity claimed by the Class IV
employees of High Court as per salary
given to Class IV employees working in
Delhi High Court-four judges Committee
recommended for the same pay scale
considering their qualification, nature of
duty etc.-Hon'ble Chief Justice send the
draft of Rules for approval by Hon'ble
Governor
for
financial
grant-matter
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
473
never placed before Hon'ble Governor,
nor any discussion made by the state
authorities-out rightly rejection by a
petty authority amounts to sit over the
constitutional

machinery-order
impugned
can
not
sustain-Quashedmandamus issued to approve the draft of
Rules
as
per
recommendations
of
Hon'ble the Chief Justice.

Held: Para 30 & 38

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.

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 contem

## Text

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472 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the bail application of the applicant in
accordance with law laid down in Smt.
Amrawati case (supra).

5. Having given my thoughtful
consideration to the entire matter, I do not
think that any further specific direction is
required to be issued to the court below to
decide the bail application of the applicant
in accordance with guidelines laid down
by Seven Judges Bench of this Court in
Smt. Amrawati case (supra), because the
law laid down in that decision by this
Court is binding on all the subordinate
courts in Uttar Pradesh. In this context,
reference may be made to Rule 6 of
General
Rules
(Civil)
1957,
which
provides that "All subordinate courts shall
follow the rulings of the High Court
which are in force". Every subordinate
court in Uttar Pradesh is supposed to
follow the law and guidelines laid down
in Smt. Amrawati case (supra) and for
this purpose no separate specific direction
is required to be issued by this Court.
Agreeing with the view of this Court in
Smt. Amrawati case (supra), the Hon'ble
Supreme Court vide order dated 23rd
March 2009 passed in Criminal Appeal
No. 538 of 2009 (arising out of SLP
(Criminal) No. 7021 of 2007) Lal
Kamlendra Pratap Singh vs. State of
U.P.& others has directed all the courts
in Uttar Pradesh to follow the decision of
Smt. Amrawati case (supra)in letter and
spirit. It is also directed by the Hon'ble
Apex Court in afore-cited decision that 'in
appropriate cases interim bail should be
granted pending disposal of the final bail
application, since arrest and detention of a
person can cause irreparable loss to a
person's reputation'. In view of these
directions also, all the subordinate courts
in Uttar Pradesh are under obligation to
follow the law laid down in Smt.
Amrawati case (supra). The direction
issued by the Hon'ble Apex Court in
afore-cited
decision,
must
also
be
followed in letter and spirit by all the
subordinate courts in Uttar Pradesh.

6. With the observations mentioned
herein-above, the application is disposed
of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 19454 Of
2007

Class IV Employees Association, High
Court of Judicature at Allahabad and
another

 ...Petitioners

Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan
Sri Namit Srivastava

Counsel for the Respondents:
Sri Zafar Naiyer, Addl. Adv. General
Sri K.R. Sirohi
Sri Yashwant Verma
Sri Rajni Kant Tiwari
Sri J.K. Khanna
Sri M.C. Tripathi
S.C.

Constitution of India, Art. 229 (2)-Pay
Scale-Parity claimed by the Class IV
employees of High Court as per salary
given to Class IV employees working in
Delhi High Court-four judges Committee
recommended for the same pay scale
considering their qualification, nature of
duty etc.-Hon'ble Chief Justice send the
draft of Rules for approval by Hon'ble
Governor
for
financial
grant-matter
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
473
never placed before Hon'ble Governor,
nor any discussion made by the state
authorities-out rightly rejection by a
petty authority amounts to sit over the
constitutional

machinery-order
impugned
can
not
sustain-Quashedmandamus issued to approve the draft of
Rules
as
per
recommendations
of
Hon'ble the Chief Justice.

Held: Para 30 & 38

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.

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.
Case law discussed;
1989 (4) SCC 187, 1999 (3) SCC 217, 1971 (2)
SCC 137, 1989(4) SCC 187, 2004 (1) SCC 334,
2004 (2) SCC 150, 1998 (3) SCC 72,
2002(2)SCC 141, 2004(1)SCC 334,

(Delivered by Hon'ble 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
474 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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.975-1600 to
Class-IV employees w.e.f. 1.1.1986 with
all consequential benefits and also the
scale of Rs.1000-1750 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.975-1660/- to all those class-IV
employees who are presently in the pay
scale of Rs.750-940/- and the salary of
Rs.1000-1750/- to all such class IV
employees who are presently in the pay
scale of Rs.775-1025/- 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
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
475
27.9.2004 in Civil Appeal No. 1980 of
2000, State of U.P. vs. Section Officer
Brotherhood and another. 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 vs. Association of Court
Stenos.,
P.A.,P.S.
and
another,
2002(2)SCC 141, and in the Supreme
Court Employees' Welfare Association
vs.
Union
of
India
and
another,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
476 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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 payscales
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 qualifications for recruitment,
should be placed in the pay scale of
Rs.3050-4590/-. The others namely the
promotional posts and technical posts be
given the pay scale of Rs.3200-4900/-
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-à-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
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
477
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
478 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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 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 preform 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
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
479
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. vs. P.D. Attri and others,
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.

Sri Yashwant Verma, Advocate,
appearing on behalf of the High Court,
submitted that the State Government was
unnecessarily raising frivolous objections
480 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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
judgement of the Single Judge, the ClassIV 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.

19. 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 India, the Rules framed by
the Chief Justice are required to be
approved 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.
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
481
20. 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 herein below:-

"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."

21. The provisions of Article 229 (2)
of the Constitution has been a subject of
interpretation by the Supreme Court
through various judgments.

22.
In
M.
Gurumoorthy
vs.
Accountant
General,
Assam
and
Nagaland and others, 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 Constitutionmakers 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
482 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
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."

23. In State of Andhra Pradesh
and another vs. T. Gopalakrishnan
Murthi and others, 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."

24. In Supreme Court Employees'
Welfare Association vs. Union of India
and another, 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 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."

25. Similar view was expressed by
the Supreme Court in the High Court
Employees
Welfare
Association,
Calcutta and others vs. State of W.B.
and others, 2004 (1) SCC 334. In Union
of India and Another vs. S.B.Vohra and
2 All] Class IV Emp. Association High Court, Allahabad V. State of U.P. and others
483
others, 2004 (2) SCC 150, 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."

26. In the High Court of Judicature
for Rajasthan vs. Ramesh Chandra
Paliwal and another, 1998(3) SCC 72,
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.
vs.
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 Ass. vs. 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."

27. In State of Maharashtra vs.
Association of Court Stenos.,P.A.,P.S.
and another, 2002(2)SCC 141, the
Supreme Court:-