IMPORTANT POINT
Governor s approval is an exception to the power of Chief Justice contemplated by Article 229 of Constitution of India.

ORDER

The present writ petition seeks to challenge the refusal by the Governor of West Bengal to grant approval to the draft Calcutta High Court Services Rules, 1998 under Article 229(2) of the Constitution.

2. The brief facts are as follows:-

In 1995, the Government of West Bengal appointed the 4th Pay Commission the Terms of Reference of which included the employees of the Calcutta High Court. The High Court employees made a representation to the Chief Justice requesting exercise of this power under Article 229. Accordingly, a Three-Judge Committee was appointed. In the meanwhile, the Government of West Bengal contacted the Registrar of High Court for information about the employees for the purposes of Pay Commission. The Registrar replied by saying that a Committee has already been set up for this purpose. The Three Judge Committee submitted its report but expressed doubts about the enforceability of their recommendations in light of clause (2) of Article 229.

3. Pursuant to a resolution of the Full Court, a Five-Judge Committee was set up. The draft Rules proposed by this Committee was approved by the Chief Justice and was forwarded for approval of the Governor.

4. The State Government replied saying that it could not recommend the said Draft Rules for approval of the Governor because:-

(1) Creation of new posts is not envisaged by Article 229(2).

(2) High Court employees have already been included in Terms of Reference of the 4th Pay Commission with the Court s knowledge and consent

(3) It will create unjust inequality and administrative problems.

(4) Financial inability.

5. Hence, the petitioners have filed a writ petition under Article 32 challenging such refusal.

6. During the pendency of the proceedings, negotiations took place between the two parties. The Chief Justice and the State Government had several discussions on the matter. However, the State Government expressed reservations on the ground of financial inability.

Hence, this matter is unresolved due to lack of consensus.

7. The purpose and scope of Article 229(2) has been discussed and explicated by this Court in a number of cases. In M. Gurumoorthy vs. Accountant General, Assam & Nagaland, 1971(2) SCC 137, it was held that the Governor s approval must be sought because the finances have to be provided by the Government and to the extent there is any involvement of expenses, the Government has to approve of it. Therefore, the Governor s approval is an exception to the power of Chief Justice contemplated by Article 229. It was further held in State of A.P. vs. T. Gopal Krishnan Murthy (1976 (2) SCC 883), that the grant of approval by Governor under Article 229 is not a mere formality.

8. In the case of Supreme Court Employees Welfare Association vs. Union of India [(1989) 4 SCC 187], it was held that "not only does the Chief Justice have to apply his mind to the framing of the Rules but also the Government has to apply its mind to the question of approval of the Rules framed by the Chief Justice. The condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice and it is highly desirable that there should be consensus between the two. The Rules framed by a very high dignitary such as the Chief Justice of India should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted".

9. In the instant case, the primary reason for refusal of grant of approval by the Governor has been the Government s claim of inability to bear the financial burden imposed by the draft rules. The Governor, under Article 229(2) has the power to refuse grant of approval, provided there is "very good reason" for the same. It cannot be said that there has been no exchange of views b